As filed with the Securities and Exchange Commission on February 5, 2025
Registration No. 333-276954
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Healthpeak Properties, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Healthpeak OP, LLC
(Exact Name of Registrant as Specified in Its Charter)
Guarantor Registrants (See below)
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Maryland (Healthpeak Properties, Inc.)
Maryland (Healthpeak OP, LLC)
(State or Other Jurisdiction of
Incorporation or Organization)
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4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
(720) 428-5050
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
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33-0091377 (Healthpeak Properties, Inc.)
92-2270343 (Healthpeak OP, LLC)
(IRS Employer
Identification Number)
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Jeffrey H. Miller, Esq.
General Counsel
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
(720) 428-5050
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With copies to:
Lewis W. Kneib, Esq.
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067
(424) 653-5500
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by the Registrant
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Healthpeak Properties, Inc:
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging Growth Company
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Healthpeak OP, LLC:
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging Growth Company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
Healthpeak Properties, Inc. ☐Healthpeak OP, LLC ☐
GUARANTOR REGISTRANTS(1)
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Exact Name of Registrant as Specified in Its Charter
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State or Other Jurisdiction of
Incorporation or Organization
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I.R.S. Employer Identification
Number
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DOC DR, LLC
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Maryland
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80-0941870
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DOC DR Holdco, LLC
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Maryland
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46-2519850
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(1)
The address, including zip code, and telephone number, including area code, of each of the Guarantor Registrants’ principal executive offices is 4600 South Syracuse Street, Suite 500 Denver, Colorado 80237, telephone (720) 428-5050. The name, address, including zip code, and telephone number, including area code, of the agent for service for each Guarantor Registrant is Jeffrey H. Miller, Esq., 4600 South Syracuse Street, Suite 500, Denver, Colorado 80237, telephone (720) 428-5050.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File Nos. 333-276954 and 333-276954-01) of Healthpeak Properties, Inc. and Healthpeak OP, LLC is being filed pursuant to Rule 413(b) under the Securities Act of 1933, as amended, to: (i) add the Guarantor Registrants, each a subsidiary of Healthpeak Properties, Inc., as co-registrants to the Registration Statement; (ii) register guarantees by the Guarantor Registrants of debt securities of Healthpeak Properties, Inc. and/or Healthpeak OP, LLC as additional securities that may be offered under the prospectus included herein; (iii) amend the prospectus that forms a part of the Registration Statement to describe the guarantees of debt securities and to update certain information contained in the Registration Statement; and (iv) file additional exhibits to the Registration Statement under Item 16 of Part II thereof. This Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 shall become effective immediately upon filing with the Securities and Exchange Commission.
PROSPECTUS
Healthpeak Properties, Inc.
Common Stock
Preferred Stock
Depositary Shares
Warrants
Debt Securities
Guarantees
Healthpeak OP, LLC
Debt Securities
Guarantees
Healthpeak Properties, Inc. may from time to time, in one or more offerings, offer to sell common stock, preferred stock, depositary shares, warrants or debt securities, which may be fully and unconditionally guaranteed by Healthpeak OP, LLC, DOC DR Holdco, LLC and DOC DR, LLC, unless otherwise described in the applicable prospectus supplement. Healthpeak OP, LLC may from time to time offer to sell debt securities in one or more series, which will be fully and unconditionally guaranteed by Healthpeak Properties, Inc., DOC DR Holdco, LLC and DOC DR, LLC, unless otherwise described in the applicable prospectus supplement.
This prospectus describes some of the general terms that may apply to these securities. We will provide the specific amounts, prices and terms of these securities in one or more supplements to this prospectus at the time of the offering and such prospectus supplement may include limitations on actual or constructive ownership and restrictions on transfer of the offered securities, in each case as may be appropriate to preserve our status as a real estate investment trust, or REIT, for U.S. federal income tax purposes. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and any accompanying prospectus supplement or other offering materials carefully before you make your investment decision.
The applicable prospectus supplement will also contain information, where applicable, about certain U.S. federal income tax consequences relating to, and any listing on a securities exchange of, the offered securities covered by such prospectus supplement.
We may offer and sell these securities through underwriters, brokers, dealers or agents or directly to purchasers, or a combination thereof on a continuous or delayed basis. The securities may also be resold by selling securityholders. The prospectus supplement for each offering will describe in detail the plan of distribution for that offering and will set forth the names of any underwriters, dealers or agents involved in the offering and any applicable fees, commissions or discount arrangements and our net proceeds for such sale.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement or a free writing prospectus.
Healthpeak Properties, Inc.’s common stock is listed on the New York Stock Exchange, or NYSE, under the trading symbol “DOC.” On February 4, 2025 the last reported sale price of Healthpeak Properties, Inc.’s common stock on the NYSE was $20.06 per share. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
Investing in our securities involves risks. You should carefully consider the risk factors incorporated herein by reference and described under the heading “Risk Factors” beginning on page 2 of this prospectus and in any accompanying prospectus supplement relating to specific offerings of securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is February 5, 2025.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process. Under the shelf registration process, we may offer and sell common stock, preferred stock, depositary shares, warrants, debt securities or guarantees, or any combination thereof, from time to time, in one or more offerings.
This prospectus only provides you with a general description of the securities we may offer. Each time we or any selling securityholders sell securities, we or any selling securityholders will provide a supplement to this prospectus that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update or change information contained in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus will supersede this prospectus to the extent it contains information that is different from, or that conflicts with, the information contained in this prospectus. You should carefully read both this prospectus and any accompanying prospectus supplement or other offering materials, together with the additional information described under the heading “Where You Can Find More Information,” in making your investment decision.
You should rely only on the information contained or incorporated by reference in this prospectus, the applicable prospectus supplement, or any free writing prospectus. Neither we, nor any selling securityholders, have authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus, the applicable prospectus supplement, and any free writing prospectus are not an offer to sell or solicitation of an offer to buy these securities in any jurisdiction where the offer, solicitation or sale is not permitted. This document may only be used where it is legal to sell these securities.
This prospectus and any accompanying prospectus supplement or other offering materials do not contain all of the information included in the registration statement as permitted by the rules and regulations of the SEC. For further information, we refer you to the registration statement on Form S-3, including its exhibits. We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and, therefore, file reports and other information with the SEC. Statements contained in this prospectus and any accompanying prospectus supplement or other offering materials about the provisions or contents of any agreement or other document are only summaries. If SEC rules require that any agreement or document be filed as an exhibit to the registration statement, you should refer to that agreement or document for its complete contents.
You should not assume that the information contained or incorporated by reference in this prospectus, any prospectus supplement and any applicable free writing prospectus or any other offering materials is accurate as of any date other than the date on the front of each document. Our business, financial condition, results of operations and prospects may have changed since then.
Healthpeak Properties, Inc. is a Maryland corporation organized to qualify as a REIT under the Internal Revenue Code of 1986, as amended, or the Code, and operates its business through its consolidated subsidiary, Healthpeak OP, LLC, a Maryland limited liability company. In this prospectus, unless otherwise indicated or unless the context requires otherwise, references to “Healthpeak,” “our company,” “we,” “us” or “our” mean Healthpeak Properties, Inc., together with its consolidated subsidiaries, including Healthpeak OP, LLC, and including, where context requires, the predecessor entity also known as Healthpeak Properties, Inc., and references to the “operating company” mean Healthpeak OP, LLC. References in this prospectus to the “Subsidiary Guarantors” refer to DOC DR Holdco, LLC and DOC DR, LLC.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC under the Exchange Act. The SEC maintains a website, www.sec.gov, that contains reports, proxy and information statements, and other information regarding issuers, such as us, that file electronically with the SEC. In addition, we maintain a website that contains information about us at http://www.healthpeak.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of, this prospectus or the applicable prospectus supplement or any other report or document we file with or furnish to the SEC.
The SEC allows us to “incorporate by reference” information we file with the SEC into this prospectus and any accompanying prospectus supplement. This means that we can disclose important information to you by referring you to another document that we have filed separately with the SEC.
The information incorporated by reference is considered to be part of this prospectus and any accompanying prospectus supplement. Information that we file with the SEC after the date of this prospectus and that is incorporated by reference in this prospectus and any accompanying prospectus supplement will update and supersede the information included or incorporated by reference into this prospectus and any accompanying prospectus supplement. We incorporate by reference in this prospectus and any accompanying prospectus supplement the following documents (other than any portions of any such documents deemed to have been furnished and not filed in accordance with the applicable SEC rules):
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the description of our common stock contained in Exhibit 4.15 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2024, and any amendment or report filed for the purpose of updating such disclosure; and
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any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until we sell all of the securities offered by this prospectus or the offering is otherwise terminated.
We will provide copies, without charge, of any documents incorporated by reference in this prospectus or any accompanying prospectus supplement, excluding exhibits unless specifically incorporated by reference, to any persons to whom a prospectus is delivered, including any beneficial owner, who requests them in writing or by telephone from:
Legal Department
Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
(720) 428-5050
legaldept@healthpeak.com
SUMMARY
The information included below is only a summary and may not contain all the information that is important to you. You should carefully read both this prospectus and any accompanying prospectus supplement, the documents incorporated by reference herein and therein, any applicable free writing prospectus, and any other offering materials, together with the additional information described under the heading “Where You Can Find More Information.”
Healthpeak Properties, Inc.
Healthpeak Properties, Inc., a Standard & Poor’s 500 company, is a Maryland corporation that is organized to qualify as a REIT and that, together with its consolidated entities, invests in and manages real estate focused on healthcare discovery and delivery. We own, operate and develop real estate focused on healthcare discover and delivery in the United States. Our diversified portfolio is comprised of investments in the following reportable healthcare segments: (i) lab; (ii) outpatient medical; and (iii) continuing care retirement community.
We generally hold substantially all of our assets and conduct our operations through an Umbrella Partnership Real Estate Investment Trust, or UPREIT, structure, pursuant to an UPREIT reorganization completed in February 2023, in which our properties are owned by the operating company, Healthpeak OP, LLC, a consolidated subsidiary of which we are the managing member.
Our principal executive offices are located at 4600 South Syracuse Street, Suite 500, Denver, Colorado 80237, and our telephone number is (720) 428-5050.
RISK FACTORS
Before making an investment decision, you should carefully consider the information under the heading “Risk Factors” incorporated by reference to our most recent Annual Report on Form 10-K, any subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed (and not furnished) by us with the SEC subsequent to the last day of the fiscal year covered by our most recent Annual Report on Form 10-K and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act that are also incorporated by reference into this prospectus, and the risk factors and other information contained in the applicable prospectus supplement and any applicable free writing prospectus before acquiring any securities offered by this prospectus and any applicable prospectus supplement. Each of the risks described in these documents could materially and adversely affect our business, financial condition, results of operations and prospects, and could result in a partial or complete loss of your investment. See “Where You Can Find More Information.”
GUARANTOR DISCLOSURES
Healthpeak Properties, Inc. and the Subsidiary Guarantors may guarantee debt securities of the operating company and the operating company and the Subsidiary Guarantors may guarantee debt securities of Healthpeak Properties, Inc. as described in “Description of Debt Securities and Guarantees.” Any such guarantees by Healthpeak Properties, Inc., the operating company and the Subsidiary Guarantors will be full, irrevocable, unconditional and absolute joint and several guarantees to the holders of each series of such outstanding guaranteed debt securities. Healthpeak Properties, Inc. owns all of its assets and conducts all of its operations through the operating company and the operating company and the Subsidiary Guarantors will be consolidated into Healthpeak Properties, Inc.’s consolidated financial statements.
Healthpeak Properties, Inc., the operating company and the Subsidiary Guarantors have filed this prospectus with the SEC registering, among other securities, debt securities of the operating company, which will be fully and unconditionally guaranteed by Healthpeak Properties, Inc. and the Subsidiary Guarantors, and debt securities of Healthpeak Properties, Inc, which will be fully and unconditionally guaranteed by the operating company and the Subsidiary Guarantors. Subsidiary issuers and guarantors of obligations guaranteed by the parent are not required to provide separate financial statements, provided that the parent guarantee is “full and unconditional,” the subsidiary obligor is a consolidated subsidiary of the parent company, the guaranteed security is debt or debt-like, and consolidated financial statements of the parent company have been filed. Accordingly, separate consolidated financial statements of the operating company and Subsidiary Guarantors have not been presented.
As permitted under Rule 13-01 of Regulation S-X, we have excluded the summarized financial information for Healthpeak Properties, Inc., the operating company and the Subsidiary Guarantors because Healthpeak Properties, Inc., the operating company and the Subsidiary Guarantors have no material assets, liabilities, or operations other than debt financing activities and their investments in non-guarantor subsidiaries, and management believes such summarized financial information would be repetitive and would not provide incremental value to investors.
USE OF PROCEEDS
We will disclose the intended use of net proceeds from our sales of the securities in the applicable prospectus supplement. We will not receive any proceeds from sales of securities by selling securityholders.
DESCRIPTION OF CAPITAL STOCK
The following description summarizes the material provisions of the common stock and preferred stock Healthpeak Properties, Inc. may offer. This description is not complete and is subject to, and is qualified in its entirety by reference to, our charter and our bylaws and applicable provisions of the Maryland General Corporation Law, or the MGCL. The specific terms of any series of preferred stock will be described in the applicable prospectus supplement. Any series of preferred stock we issue will be governed by our charter and by the articles supplementary related to that series. We will file the articles supplementary with the SEC and incorporate it by reference as an exhibit to our registration statement at or before the time we issue any preferred stock of that series of authorized preferred stock. As used in this “Description of Capital Stock,” references to “Healthpeak,” “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
Our authorized capital stock consists of 1,500,000,000 shares of common stock, par value $1.00 per share, and 50,000,000 shares of preferred stock, par value $1.00 per share. The following description does not contain all the information that might be important to you.
Common Stock
As of February 4, 2025, there were 699,565,576 shares of common stock outstanding. All shares of common stock participate equally in dividends payable to holders of common stock, when, as and if authorized by our board and declared by us, and in net assets available for distribution to holders of common stock on liquidation, dissolution, or winding up. Each outstanding share of common stock entitles the holder to one vote on all matters submitted to a vote of our stockholders. Holders of common stock do not have cumulative voting rights in the election of directors.
All issued and outstanding shares of common stock are, and the common stock offered by this prospectus will be upon issuance in exchange for the consideration therefor, validly issued, fully paid and nonassessable. Holders of common stock do not have preference, conversion, exchange or preemptive rights. The common stock is listed on the NYSE (NYSE Symbol: DOC).
The Transfer Agent and Registrar for our common stock is Equiniti Trust Company, LLC (“EQ” or “EQ Shareowner Services”).
Preferred Stock
As of February 4, 2025, we had no shares of preferred stock outstanding. Under our charter, our board is authorized without further stockholder action to establish and issue, from time to time, up to 50,000,000 shares of our preferred stock, in one or more series. Our board may grant the holders of preferred stock of any series preferences, powers and rights — voting or otherwise — senior to those of holders of shares of our common stock. Our board can authorize the issuance of shares of preferred stock with terms and conditions that could have the effect of delaying or preventing a change of control transaction that might involve a premium price for holders of shares of our common stock or otherwise be in their best interest. All shares of preferred stock will, when issued in exchange for the consideration therefor, be fully paid and nonassessable and will have no preemptive rights. The MGCL and our charter require our board to determine the terms and conditions of any series of preferred stock, including:
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the number of shares constituting such series and the distinctive designation thereof;
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the voting rights, if any, of such series;
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the rate of dividends payable on such series, the time or times when dividends will be payable, the preference to, or any relation to, the payment of dividends to any other class or series of stock and whether the dividends will be cumulative or noncumulative;
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whether there shall be a sinking or similar fund for the purchase of shares of such series and, if so, the terms and provisions that shall govern such fund;
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the rights of the holders of shares of such series upon our liquidation, dissolution or winding up;
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the rights, if any, of holders of shares of such series to convert such shares into, or to exchange such shares for, shares of any other class or series of our stock or any other securities, the price or prices or rate or rates of exchange, with such adjustments as shall be provided, at which such shares shall be convertible or exchangeable, whether such rights of conversion or exchange shall be exercisable at the option of the holder of the shares or upon the happening of a specified event and any other terms or conditions of such conversion or exchange;
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if the shares are redeemable, the prices at which, and the terms and conditions on which, the shares of such series may be redeemed; and
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any other preferences, powers and relative participating, optional or other special rights and qualifications, limitations or restrictions of shares of such series.
The terms and conditions of any particular series of preferred stock will be described in the prospectus supplement relating to that particular series of preferred stock.
Transfer and Ownership Restrictions Relating to Our Common Stock
Our charter contains restrictions on the ownership and transfer of our common stock that are intended to assist us in complying with the requirements to continue to qualify as a REIT.
Subject to limited exceptions, no person or entity may own, or be deemed to own by virtue of the applicable constructive ownership provisions of the Code, more than 9.8% (by number or value of shares, whichever is more restrictive) of the outstanding shares of our common stock. Our board may, but is in no event required to, waive the applicable ownership limit with respect to a particular stockholder if it determines that such ownership will not jeopardize our status as a REIT and our board otherwise decides such action would be in our best interests.
These charter provisions further prohibit:
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any person from actually or constructively owning shares of our stock that would result in our being “closely held” under Section 856(h) of the Code or otherwise cause us to fail to qualify as a real estate investment trust (including but not limited to ownership that would result in us owning, actually or constructively, an interest in a tenant as described in Section 856(d)(2)(B) of the Code if the income derived by us, either directly or indirectly, from such tenant would cause us to fail to satisfy any of the gross income requirements of Section 856(c) of the Code); and
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any person from transferring shares of our capital stock if such transfer would result in shares of our stock being beneficially owned by fewer than 100 persons (determined without reference to any rules of attribution).
Any person who acquires or attempts or intends to acquire actual or constructive ownership of shares of our stock that will or may violate any of these restrictions on ownership and transfer is required to give notice immediately to us and provide us with such other information as we may request in order to determine the effect of the transfer on our qualification as a REIT. Under our charter, if any purported transfer of our stock or any other event would otherwise result in any person violating the applicable ownership limit or such other limit as permitted by our board, then any such purported transfer is void and of no force or effect with respect to the purported transferee as to that number of shares of our stock in excess of the ownership limit or such other limit, and the transferee will acquire no right or interest in such excess shares. Any excess shares described above are transferred automatically, by operation of law, to a trust, the beneficiary of which is a qualified charitable organization selected by us. Such automatic transfer will be deemed to be effective as of the close of business on the business day prior to the date of such violative transfer. Within 20 days of receiving notice from us of the transfer of shares to the trust, the trustee of the trust is required to sell the excess shares to a person or entity who could own the shares without violating the applicable ownership limit, or such other limit as permitted by our board, and distribute to the prohibited transferee an amount equal to the lesser of the price paid by the prohibited transferee for the excess shares or the sales proceeds received by the trust for the excess shares. Any proceeds in excess of the amount distributable to the prohibited transferee are distributed to the beneficiary of the trust. Prior to a sale of any such excess shares by the trust, the trustee is entitled to receive, in trust for the beneficiary, all dividends
and other distributions paid by us with respect to such excess shares, and also is entitled to exercise all voting rights with respect to such excess shares.
Subject to Maryland law, effective as of the date that such shares have been transferred to the trust, the trustee will have the authority, at the trustee’s sole discretion:
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to rescind as void any vote cast by a prohibited transferee prior to the discovery by us that the shares have been transferred to the trust; or
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to recast such vote in accordance with the desires of the trustee acting for the benefit of the beneficiary of the trust.
However, if we have already taken irreversible corporate action, then the trustee will not have the authority to rescind and recast such vote. Any dividend or other distribution paid to the prohibited transferee, prior to the discovery by us that such shares had been automatically transferred to a trust as described above, are required to be repaid to the trustee upon demand for distribution to the beneficiary of the trust. In the event that the transfer to the trust as described above is not automatically effective, for any reason, to prevent violation of the ownership limit or such other limit as permitted by our board, then our charter provides that the transfer of the excess shares is void ab initio.
In addition, shares of common stock held in the trust shall be deemed to have been offered for sale to us, or our designee, at a price per share equal to the lesser of:
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the price per share in the transaction that resulted in such transfer to the trust or, if the event that resulted in the transfer to the trust did not involve a purchase of such shares at market price, the market price on the day of such event; and
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the market price on the date we, or our designee, accepted the offer.
We will have the right to accept the offer until the trustee has sold the shares of stock held in the trust. Upon a sale to us, the interest of the beneficiary in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the prohibited transferee.
If any purported transfer of shares of common stock would cause us to be beneficially owned by fewer than 100 persons, such transfer will be null and void ab initio in its entirety and the intended transferee will acquire no rights to the stock.
All certificates representing shares of common stock bear a legend referring to the restrictions described above. The foregoing ownership limitations could delay, deter or prevent a transaction or a change in control of us that might involve a premium price for the common stock or otherwise be in the best interest of our stockholders.
In addition, if our board shall, at any time and in good faith, be of the opinion that direct or indirect ownership of at least 9.9% of the voting shares of capital stock has or may become concentrated in the hands of one beneficial owner, it shall have the power:
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by lot or other means deemed equitable by it to call for the purchase from any stockholder of a number of voting shares sufficient, in the opinion of our board, to maintain or bring the direct or indirect ownership of voting shares of capital stock of the beneficial owner to a level of no more than 9.9% of our outstanding voting shares; and
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to refuse to transfer or issue voting shares of capital stock to any person whose acquisition of such voting shares would, in the opinion of the board, result in the direct or indirect ownership by that person of more than 9.9% of the outstanding voting shares of our capital stock.
If our board fails to grant an exemption from this 9.9% ownership limitation, then the transfer of shares, options, warrants, or other securities convertible into voting shares that would create a beneficial owner of more than 9.9% of the outstanding voting shares shall be deemed void ab initio, and the intended transferee shall be deemed never to have had an interest in the transferred securities. The purchase price for any voting shares of capital stock so redeemed shall be equal to the fair market value of the shares reflected in the closing sales price for the shares, if then listed on a national securities exchange, or the average of the closing sales prices for the shares if then listed on more than one national securities exchange, or if the
shares are not then listed on a national securities exchange, the latest bid quotation for the shares if then traded over-the-counter, on the last business day immediately preceding the day on which we send notices of such acquisitions, or, if no such closing sales prices or quotations are available, then the purchase price shall be equal to the net asset value of such stock as determined by the board in accordance with the provisions of applicable law. From and after the date fixed for purchase by the board, the holder of any shares so called for purchase shall cease to be entitled to distributions, voting rights and other benefits with respect to such shares, except the right to payment of the purchase price for the shares.
Business Combination Provisions
Our charter requires that, except in some circumstances, “business combinations” between us and a beneficial holder, together with its affiliates and associates, of 10% or more of our outstanding voting stock and any affiliate or associate of such holder (a “Related Person”) be approved by the affirmative vote of at least 90% of our outstanding voting shares. A “business combination” is defined in our charter as:
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any merger or consolidation with or into a Related Person;
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any sale, lease, exchange, transfer or other disposition, including without limitation a mortgage or any other security device, of all or any “Substantial Part” (as defined below) of our assets, including any voting securities of a subsidiary, to a Related Person;
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any merger or consolidation of a Related Person with or into us;
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any sale, lease, exchange, transfer or other disposition of all or any Substantial Part of the assets of a Related Person to us;
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the issuance of any of our securities, other than by way of pro rata distribution to all stockholders, to a Related Person; and
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any agreement, contract or other arrangement providing for any of the transactions described above.
The term “Substantial Part” means more than 10% of the book value of our total assets as of the end of our most recent fiscal year ending prior to the time the determination is being made.
In addition to the restrictions on business combinations contained in our charter, Maryland law also contains restrictions on business combinations. See “Certain Provisions of Maryland Law and Healthpeak’s Charter and Bylaws-Business Combinations.”
The foregoing provisions may have the effect of discouraging unilateral tender offers or other takeover proposals which stockholders might deem to be in their interests or in which they might receive a substantial premium. Our board’s authority to issue and establish the terms of currently authorized preferred stock, without stockholder approval, may also have the effect of discouraging takeover attempts. See “— Preferred Stock.”
The foregoing provisions could also have the effect of insulating current management against the possibility of removal and could, by possibly reducing temporary fluctuations in market price caused by accumulations of shares of our common stock, deprive stockholders of opportunities to sell at a temporarily higher market price. Our board believes, however, that inclusion of the business combination provisions in our charter may help assure fair treatment of our stockholders and preserve our assets.
Transfer and Ownership Restrictions Relating to Our Preferred Stock
Our charter may contain restrictions on the ownership and transfer of preferred stock that are intended to assist us in complying with the requirements to maintain our qualification as a REIT. Subject to limited exceptions, unless otherwise provided in a prospectus supplement relating to a particular series of the preferred stock, no person or entity may own, or be deemed to own by virtue of the applicable constructive ownership provisions of the Code, more than 9.8% (by number or value of shares, whichever is more restrictive) of the outstanding shares of such series of preferred stock. Our board may, but in no event will be required to, waive the applicable ownership limit with respect to a particular stockholder if it determines that such ownership will not jeopardize our qualification as a REIT and our board otherwise decides such action would be in our best interests. The mechanics for the ownership limits on our preferred stock will be similar to the mechanics related to our common stock, as described in “— Transfer and Ownership Restrictions Relating to Our Common Stock” above, unless otherwise provided in a prospectus supplement relating to a particular series of the preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
General
We may offer fractional shares of preferred stock, rather than full shares of preferred stock. If we do so, we may issue receipts for depositary shares that each represent a fraction of a share of a particular series of preferred stock. The prospectus supplement will indicate that fraction. The shares of preferred stock represented by depositary shares will be deposited under one or more depositary agreements between us and a bank or trust company that meets certain requirements and is selected by us (the “bank depositary”). Each owner of a depositary share will be entitled to all the rights and preferences of the preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering. As used in this “Description of Depositary Shares,” references to “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
We have summarized some common provisions of a depositary agreement and the related depositary receipts. The description in the applicable prospectus supplement of any depositary shares we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable depositary agreement and the depositary receipts relating to any particular issue of depositary shares, which will be filed with the SEC if we offer depository shares. For more information on how you can obtain copies of any depositary agreement and the depositary receipts if we offer depositary shares, see “Where You Can Find More Information.” We urge you to read the applicable depositary agreement and the depositary receipts relating to any particular issue of depositary shares and any applicable prospectus supplement in their entirety.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock represented by depositary shares, the bank depositary will distribute such dividends to the record holders of such depositary shares. If the distributions are in property other than cash, the bank depositary will distribute the property to the record holders of the depositary shares. However, if the bank depositary determines that it is not feasible to make the distribution of property, the bank depositary may, with our approval, sell such property and distribute the net proceeds from such sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the bank depositary will redeem the depositary shares from the proceeds received by the bank depositary in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as the bank depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the bank depositary will mail the notice to the record holders of the depositary shares relating to such preferred stock. Each record holder of these depositary shares on the record date, which will be the same date as the record date for the preferred stock, may instruct the bank depositary as to how to vote the preferred stock represented by such holder’s depositary shares. The bank depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and we will take all action that the bank depositary deems necessary in order to enable the bank depositary to do so. The bank depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may be amended by agreement between the bank depositary and us. However, any amendment
that materially and adversely alters the rights of the holders of depositary shares will not be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. The depositary agreement may be terminated by the bank depositary or us only if (i) all outstanding depositary shares have been redeemed or (ii) there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of our company and such distribution has been distributed to the holders of depositary receipts.
Charges of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the bank depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and any other charges, including a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositary agreement.
Withdrawal of Preferred Stock
Except as may be provided otherwise in the applicable prospectus supplement, upon surrender of depositary receipts at the principal office of the bank depositary, subject to the terms of the depositary agreement, the owner of the depositary shares may demand delivery of the number of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Partial shares of preferred stock will not be issued. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the bank depositary will deliver to such holder at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Miscellaneous
The bank depositary will forward to holders of depositary receipts all reports and communications from us that are delivered to the bank depositary and that we are required to furnish to the holders of the preferred stock.
Neither the bank depositary nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under the depositary agreement. The obligations of the bank depositary and us under the depositary agreement will be limited to performance in good faith of our duties thereunder, and we will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We may rely upon written advice of counsel or accountants, or upon information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Bank Depositary
The bank depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the bank depositary. Any such resignation or removal will take effect upon the appointment of a successor bank depositary and its acceptance of such appointment. The successor bank depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company meeting the requirements of the depositary agreement.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock, common stock or other securities. We may issue warrants independently or together with any offered securities. The warrants may be attached to or separate from those offered securities. We will issue the warrants under one or more warrant agreements to be entered into between us and a warrant agent to be named in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. As used in this “Description of Warrants,” references to “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
The prospectus supplement relating to any warrants that we may offer will contain the specific terms of the warrants. These terms may include the following:
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the title of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, amount and terms of the securities for which the warrants are exercisable;
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the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security;
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the aggregate number of warrants;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants;
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the price or prices at which the securities purchasable upon exercise of the warrants may be purchased;
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if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable;
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a discussion of certain U.S. federal income tax considerations applicable to the exercise of the warrants;
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the date on which the right to exercise the warrants will commence, and the date on which the right will expire;
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the maximum or minimum number of warrants that may be exercised at any time;
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information with respect to book-entry procedures, if any; and
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase for cash the amount of debt securities, preferred stock, common stock or other securities at the exercise price stated or determinable in the applicable prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the expiration date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised as described in the applicable prospectus supplement. When the warrant holder makes the payment and properly completes and signs the warrant certificate at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as possible, forward the debt securities, preferred stock, common stock or other securities that the warrant holder has purchased. If the warrant holder exercises the warrant for less than all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the remaining outstanding warrants.
The description in the applicable prospectus supplement of any warrants we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable warrant agreement and warrant
certificate, which will be filed with the SEC if we offer warrants. For more information on how you can obtain copies of any warrant certificate or warrant agreement if we offer warrants, see “Where You Can Find More Information.” We urge you to read the applicable warrant certificate, the applicable warrant agreement and any applicable prospectus supplement in their entirety.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
As used in this “Description of Debt Securities and Guarantees,” unless the context requires otherwise, references to “the Company,” “we,” “our” and “us” refer either to Healthpeak Properties, Inc. or Healthpeak OP, LLC, as the case may be, as the issuer of the applicable series of debt securities and not to any subsidiaries, unless otherwise expressly stated or the context otherwise requires.
The following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus, including the terms of any related guarantees. We will also indicate in the prospectus supplement to what extent the general terms and provisions described in this prospectus apply to a particular series of debt securities. To the extent the information contained in the prospectus supplement differs from this summary description, you should rely on the information in the prospectus supplement.
We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
Unless otherwise specified in a prospectus supplement, the debt securities will be issued under an indenture between us and U.S. Bank Trust Company, National Association, as trustee. We have summarized select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement of which this prospectus is a part and you should read the indenture and debt securities carefully for provisions that may be important to you. Capitalized terms used in the summary and not defined in this prospectus have the meanings specified in the indenture.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of the board of directors of Healthpeak Properties, Inc., in its own capacity (with respect to debt securities of Healthpeak Properties, Inc.) or in its capacity as managing member of Healthpeak OP, LLC (with respect to debt securities of Healthpeak OP, LLC), and set forth or determined in the manner provided in such resolution, in an officer’s certificate or by a supplemental indenture. The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
Unless otherwise specified in a prospectus supplement, the indenture will designate U.S. Bank Trust Company, National Association as the trustee for the indenture with respect to one or more series of our debt securities. U.S. Bank Trust Company, National Association, or any other specified trustee, may resign or be removed with respect to one or more series of our debt securities, and a successor trustee may be appointed to act with respect to that series.
We can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
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whether the issuer of the debt securities is Healthpeak Properties, Inc. or Healthpeak OP, LLC;
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the title and ranking of the debt securities (including the terms of any subordination provisions);
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the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which the principal of the securities of the series is payable;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine such rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which such interest will accrue, the date or dates on which such interest will commence and be payable and any regular record date for the interest payable on any interest payment date and the basis upon which interest will be calculated if other than that of a 360 day year of twelve 30 day months;
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the place or places where principal of, and any premium and interest on, the debt securities will be payable (and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered;
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the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and in 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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the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities, which may be U.S. 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;
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the designation of the currency, currencies or currency units in which payment of principal of, and any premium and interest on, the debt securities will be made;
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if payments of principal of, or any premium or interest on, the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, or any premium or interest on, the debt securities will be determined, if these 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;
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any provisions relating to any security provided for the debt securities or any guarantees;
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any addition to, deletion of or change in the Events of Default (as defined below) described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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a discussion of any additional material United States federal income tax considerations applicable to an investment in the debt securities;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities;
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the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether conversion or exchange will be mandatory, at the option of the holders thereof or at our option, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange;
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any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities;
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whether the debt securities are entitled to the benefits of the guarantee of any guarantor, and whether any such guarantee is made on a senior or subordinated basis and, if applicable, a description of the subordination terms of any such guarantee;
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if a person other than U.S. Bank Trust Company, National Association is to act as trustee the name and location of the designated corporate trust office of such trustee;
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the securities exchange, if any, on which the debt securities may be listed; and
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any change in the right of the trustee or the right of the requisite holders to declare the principal amount of debt securities due and payable.
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of, and any premium and interest on, any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth in this prospectus or the applicable prospectus supplement, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. Unless the applicable prospectus supplement states otherwise, we will issue only book-entry debt securities. To the extent we issue any certificated debt securities, you may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated debt securities and the right to receive the principal of, and any premium and interest on, certificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) that could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
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we are the surviving entity or the successor person (if other than Healthpeak Properties, Inc. or Healthpeak OP, LLC, as applicable) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes by supplemental indenture our obligations on the debt securities and under the indenture; and
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
In addition, the indenture governing the debt securities of Healthpeak OP, LLC will not prevent any consolidation or merger of Healthpeak Properties, Inc. with or into any other person or persons, or the sale, conveyance, transfer or lease of all or substantially all of the property of Healthpeak Properties, Inc. to any other person, provided:
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Healthpeak Properties, Inc. is the continuing entity or the successor entity (if other than Healthpeak Properties, Inc.) expressly assumes the obligations of Healthpeak Properties, Inc. under its guarantee and the due and punctual performance and observance of all of the covenants and conditions in the indenture; and
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The indenture will also not prevent any consolidation or merger of the Subsidiary Guarantors with or into any other person or persons, or the sale, conveyance, transfer or lease of all or substantially all of such Subsidiary Guarantor’s respective property and assets to any other person, provided:
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such Subsidiary Guarantor is the continuing entity or the successor entity (if other than such Subsidiary Guarantor) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the obligations of such Subsidiary Guarantor under its guarantee and the due and punctual performance and observance of all of the covenants and conditions in the indenture; provided that the foregoing requirement will not apply (x) upon the sale or other disposition (including by way of consolidation or merger), in one transaction or a series of related transactions, of a majority of the total voting power of the capital stock or other interests of the respective Subsidiary Guarantor (other than to Healthpeak Properties, Inc. or Healthpeak OP, LLC, as applicable, or any affiliate of Healthpeak Properties, Inc. or Healthpeak OP, LLC, as applicable) or (y) upon the sale or disposition of all or substantially all the property of the respective Subsidiary Guarantor (other than to any affiliate of Healthpeak Properties, Inc. or Healthpeak OP, LLC, as applicable); and
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
We must 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 will comply with the indenture.
Notwithstanding the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Guarantees
Unless otherwise described in the applicable prospectus supplement, any debt securities issued by Healthpeak OP, LLC will be fully and unconditionally guaranteed by Healthpeak Properties, Inc. and the Subsidiary Guarantors, and debt securities issued by Healthpeak Properties, Inc. may be fully and unconditionally guaranteed by Healthpeak OP, LLC and the Subsidiary Guarantors. The applicable prospectus supplement relating to a series of debt securities will provide that those debt securities will have the benefit of a guarantee by Healthpeak Properties, Inc., Healthpeak OP, LLC and/or the Subsidiary Guarantors, as applicable. All such guarantees will be joint and several obligations of the respective guarantor. If a series of debt securities is so guaranteed, an indenture, or a supplemental indenture thereto, will be executed by the respective guarantor. The obligations of any guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance under applicable law. The terms of the guarantee will be set forth in the applicable prospectus supplement.
Events of Default
“Event of Default” means the occurrence of any of the following events, unless otherwise provided by resolution of the board of directors, supplemental indenture or officer’s certificate:
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default in the payment of any interest upon any debt 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 the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of any security of that series at its maturity;
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than defaults pursuant to the first or second bullet of this paragraph or pursuant to a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or we and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us, or any guarantor;
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any other Event of Default provided with respect to debt securities of that series which is specified in a resolution of the board of directors, a supplemental indenture to the indenture or an officer’s certificate, in accordance with the applicable prospectus supplement.
“Default” means any event which is, or after notice, passage of time or both would be, an Event of Default.
No Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect thereof.
If an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding
debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will ipso facto become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series, by notice in writing to our operating company and the trustee, may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will 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 debt securities of that series.
No holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series;
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the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request to the trustee to institute proceedings in respect of such Event of Default in its own name as trustee;
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such holder or holders have offered to the trustee indemnity or security reasonably satisfactory to the trustee against the costs, expenses and liabilities that might be incurred by the trustee in compliance with such request;
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the trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
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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 debt securities of such series.
Notwithstanding any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, and any premium and interest on, that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
The indenture requires us (and any guarantors, to the extent required under applicable law), within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. 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. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default
or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We, any guarantors and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
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to cure any ambiguity, defect or inconsistency;
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”;
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to provide for uncertificated securities in addition to or in place of certificated securities;
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to surrender any of our rights or powers under the indenture;
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to add covenants or events of default for the benefit of the holders of debt securities of any series;
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to comply with the applicable procedures of the applicable depositary;
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to make any change that does not adversely affect the rights of any holder of debt securities;
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture;
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee;
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act;
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to reflect the release of a guarantor of the debt securities in accordance with the terms of the indenture; or
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to add guarantors with respect to any or all of the debt securities or to secure any or all of the debt securities or the guarantees.
We may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding if that amendment will:
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reduce the principal amount of debt securities whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration of maturity;
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waive a default in the payment of the principal of, or any premium or interest on, any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration);
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make the principal of, or premium or interest on, any debt security payable in currency other than that stated in the debt security;
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, or any premium or interest on, those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments;
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waive a redemption payment with respect to any debt security, provided that such redemption is made at our option; or
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if the debt securities of that series are entitled to the benefit of a guarantee, release any guarantor of such series other than as provided in the indenture or modify the guarantee in any manner adverse to holders.
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, or any premium or any interest on, any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Regarding the Trustee
Unless otherwise specified in a prospectus supplement, U.S. Bank Trust Company, National Association will initially act as the trustee, registrar and paying agent for the debt securities, subject to replacement at our option as provided in the indenture.
If an Event of Default occurs and is continuing, the trustee will be required to use the same degree of care and skill a prudent person would exercise or use under the circumstances in the conduct of its own affairs in exercising the rights and powers vested in it by the indenture. The trustee will become obligated to exercise any of its powers under the indenture at the request of any of the holders of the required percentage under the indenture only after those holders have offered, and, if requested, provided the trustee indemnity satisfactory to it.
If the trustee becomes one of our creditors, it will be subject to limitations on its rights to obtain payment of claims or to realize on some property received for any such claim, as security or otherwise. The trustee is permitted to engage in other transactions with us. If, however, it acquires any conflicting interest, it must eliminate that conflict or resign.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we and any guarantor may be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We and any guarantor will be so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide an amount in cash sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, and any premium and interest on, and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and
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any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”).
The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, any premium and interest on, and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
Satisfaction and Discharge
The indenture will be discharged and will cease to be of further effect (except as to surviving rights or registration of transfer or exchange of the debt securities, as expressly provided for in the indenture) as to all outstanding debt securities when:
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either:
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all the debt securities theretofore authenticated and delivered (except lost, stolen or destroyed debt securities which have been replaced or paid) have been delivered to the trustee for cancellation; or
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all debt securities not theretofore delivered to the trustee for cancellation have become due and payable or will become due and payable at their maturity within one year, have been called for redemption or are to be called for redemption within one year, or are deemed paid and discharged pursuant to the legal defeasance provisions of the indenture, and we have irrevocably deposited or caused to be irrevocably deposited with the trustee as trust funds in trust cash or noncallable U.S. government obligations in an amount sufficient to pay and discharge the entire indebtedness on such debt securities not theretofore delivered to the trustee for cancellation, for principal and interest to the date of such deposit (in the case of debt securities which have become due and payable) or to the maturity date or redemption date, as the case may be;
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we have paid or caused to be paid all other sums payable under the indenture by us; and
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we have delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent provided for in the indenture relating to the satisfaction and discharge of the indenture have been complied with.
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors, officers, employees or securityholders, as such, will have any liability for any of our obligations under the debt securities, the indenture, any guarantees or for any
claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing Law
The indenture, the debt securities, and any guarantees will be governed by the laws of the State of New York.
The indenture will provide that we, any guarantors, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, 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 the indenture, the debt securities or the transactions contemplated thereby.
The indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture will further provide that we, any guarantors, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
CERTAIN PROVISIONS OF MARYLAND LAW AND HEALTHPEAK’S CHARTER AND BYLAWS
The following description summarizes certain provisions of Maryland law and of our charter and bylaws. This summary is not complete and is subject to, and is qualified in its entirety by reference to, our charter, our bylaws and applicable provisions of the MGCL. For a complete description, we refer you to the MGCL, our charter and our bylaws. We have incorporated by reference our charter and bylaws as exhibits to the registration statement of which this prospectus is a part. As used in this “Certain Provision of Maryland Law and Healthpeak’s Charter and Bylaws,” references to “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
Election of Directors
Our bylaws provide that our board may establish, increase or decrease the number of directors, provided that the number thereof shall never be less than three nor more than thirteen. Our bylaws also provide for the election of directors, in uncontested elections, by a majority of the votes cast. In contested elections, the election of directors shall be by a plurality of the votes cast. Holders of common stock have no right to cumulative voting for the election of directors. Consequently, at each annual meeting of stockholders, the holders of a majority of the outstanding shares of our common stock can elect all of our directors. A vacancy resulting from an increase in the number of directors may be filled by a majority vote of the entire board or by the affirmative vote of the holders of a majority of our shares then entitled to vote at an election of directors. Other vacancies may be filled by the vote of a majority of the remaining directors.
Removal of Directors
Our charter provides that a director of ours may be removed by the affirmative vote of the holders of two-thirds of the outstanding shares of our voting stock or by a unanimous vote of all other directors. Our stockholders may elect a successor to fill any vacancy which results from the removal of a director.
Business Combinations
Under Maryland law, “business combinations” between a Maryland corporation and an interested stockholder or an affiliate of an interested stockholder are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. These business combinations include a merger, consolidation, share exchange, or, in circumstances specified in the statute, an asset transfer or issuance or reclassification of equity securities. An interested stockholder is defined as:
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any person who beneficially owns ten percent or more of the voting power of the corporation’s shares; or
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an affiliate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner of ten percent or more of the voting power of the then outstanding voting stock of the corporation.
After the five-year prohibition, any business combination between the Maryland corporation and an interested stockholder generally must be recommended by the board of the corporation and approved by the affirmative vote of at least:
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80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and
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two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or which are held by an affiliate or associate of the interested stockholder.
These super-majority vote requirements do not apply if the corporation’s common stockholders receive a minimum price, as defined under Maryland law, for their shares in the form of cash or other consideration in the same form as previously paid by the interested stockholder for its shares. None of these provisions of Maryland law will apply, however, to business combinations that are approved or exempted by the board of the corporation prior to the time that the interested stockholder becomes an interested stockholder.
In addition to the restrictions on business combinations provided under Maryland law, our charter also contains restrictions on business combinations. See “Description of Capital Stock — Business Combination Provisions.”
Control Share Acquisitions
Maryland law provides that holders of “control shares” of a Maryland corporation acquired in a “control share acquisition” have no voting rights with respect to the control shares except to the extent approved by a vote of two-thirds of the votes entitled to be cast on the matter. Shares of stock owned by the acquiror, by officers or by directors who are employees of the corporation are excluded from shares entitled to vote on the matter. “Control shares” are voting shares of stock which, if aggregated with all other shares of stock owned by the acquiror or shares of stock for which the acquiror is able to exercise or direct the exercise of voting power except solely by virtue of a revocable proxy, would entitle the acquiror to exercise voting power in electing directors within one of the following ranges of voting power:
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one-tenth or more but less than one-third;
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one-third or more but less than a majority; or
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a majority or more of all voting power.
Control shares do not include shares the acquiring person is then entitled to vote as a result of having previously obtained stockholder approval. Except as otherwise specified in the statute, a “control share acquisition” means the acquisition of control shares.
Once a person who has made or proposes to make a control share acquisition has undertaken to pay expenses and satisfied other conditions, the person may compel the board to call a special meeting of stockholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the corporation may itself present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement as required by the statute, then the corporation may be able to redeem any or all of the control shares for fair value, except for control shares for which voting rights previously have been approved. The right of the corporation to redeem control shares is subject to certain conditions and limitations. Fair value is determined without regard to the absence of voting rights for control shares, as of the date of the last control share acquisition by the acquiror or of any meeting of stockholders at which the voting rights of control shares are considered and not approved. If voting rights for control shares are approved at a stockholders meeting and the acquiror becomes entitled to vote a majority of the shares entitled to vote, all other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of these appraisal rights may not be less than the highest price per share paid by the acquiror in the control share acquisition. Some of the limitations and restrictions otherwise applicable to the exercise of dissenters’ rights do not apply in the context of a control share acquisition.
The control share acquisition statute does not apply to shares acquired in a merger, consolidation or share exchange if the corporation is a party to the transaction or to acquisitions approved or exempted by the charter or bylaws of the corporation. Our bylaws contain a provision exempting acquisitions of shares of our stock from the control share acquisition statute. However, our board may amend our bylaws in the future to repeal or modify this exemption, in which case any control shares of our company acquired in a control share acquisition will be subject to the control share acquisition statute.
Unsolicited Takeovers
Under Maryland law, a Maryland corporation with a class of equity securities registered under the Exchange Act and at least three independent directors may elect to be subject to certain statutory provisions relating to unsolicited takeovers which, among other things, would automatically classify the board into three classes with staggered terms of three years each and vest in the board the exclusive right to determine the number of directors and the exclusive right, by the affirmative vote of a majority of the remaining directors, to fill vacancies on the board, even if the remaining directors do not constitute a quorum. These statutory provisions relating to unsolicited takeovers also provide that any director elected to fill a vacancy shall hold
office for the remainder of the full term of the class of directors in which the vacancy occurred, rather than the next annual meeting of directors as would otherwise be the case, and until his successor is elected and qualified.
Our board of directors has adopted a resolution prohibiting us from electing to be subject to the provisions of the unsolicited takeover statute relating to the classification of the board unless such election is first approved by our stockholders by the affirmative vote of a majority of all the votes entitled to be cast on the matter. An election to be subject to any or all of the other foregoing statutory provisions may be made in our charter or bylaws, or by resolution of our board without stockholder approval. Any such statutory provision to which we elect to be subject will apply even if other provisions of Maryland law or our charter or bylaws provide to the contrary. Neither our charter nor our bylaws provides that we are subject to any of the foregoing statutory provisions relating to unsolicited takeovers. However, our board could adopt a resolution, without stockholder approval, to elect to become subject to some or all of these statutory provisions except the statutory provisions relating to the classification of the board.
If we made an election, upon stockholder approval of such election, to be subject to the statutory provisions relating to the classification of the board and our board were divided into three classes with staggered terms of office of three years each, the classification and staggered terms of office of our directors would make it more difficult for a third party to gain control of our board since at least two annual meetings of stockholders, instead of one, generally would be required to effect a change in the majority of our board.
Amendments to the Charter
Provisions of our charter on business combinations, the number of directors and certain ownership restrictions may be amended only if approved by our board and by our stockholders by the affirmative vote of two-thirds of all of the votes entitled to be cast by our stockholders on the matter. Other amendments to our charter require approval by our board and approval by our stockholders by the affirmative vote of a majority of all the votes entitled to be cast by our stockholders on the matter.
Amendment to the Bylaws
Provisions of our bylaws on the number of directors, in certain circumstances, and the vote required to amend the bylaws may be amended only by unanimous vote of the board or by the affirmative vote of not less than 90% of all of the votes entitled to be cast by our stockholders on the matter. Other amendments to our bylaws require the affirmative vote of a majority of the entire board or the affirmative vote of a majority of all of the votes entitled to be cast by our stockholders on the matter.
Dissolution of Healthpeak Properties, Inc.
Our dissolution must be approved by our board by a majority vote of the entire board and by our stockholders by the affirmative vote of a majority of all the votes entitled to be cast by our stockholders on the matter.
Advance Notice of Director Nominations and New Business; Procedures of Special Meetings Requested by Stockholders
Our bylaws provide that nominations of persons for election to the board and the proposal of business to be considered by stockholders at the annual or special meeting of stockholders may be made only:
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pursuant to our notice of the meeting;
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by or at the direction of the board; or
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by a stockholder who was a stockholder at the time the notice of meeting was given and is entitled to vote at the meeting and who has complied with the advance notice procedures, including the minimum time period, described in the bylaws.
Our bylaws also provide that only the business specified in our notice of meeting may be brought before a special meeting of stockholders. Our bylaws provide that our stockholders have the right to call a
special meeting only upon the written request of the stockholders holding in the aggregate not less than 50% of the outstanding shares entitled to vote on the business proposed to be transacted at such meeting.
Proxy Access
Our bylaws permit any stockholder or group of up to 25 stockholders (counting as one stockholder, for purposes of the aggregation limit, any two or more funds that are part of the same qualifying fund group, as such term is defined in our bylaws) who have maintained continuous qualifying ownership of 3% or more of our outstanding common stock for at least the previous three years to include up to a specified number of director nominees in our proxy materials for an annual meeting of stockholders. If a group of stockholders is aggregating its shareholdings in order to meet the 3% ownership requirement, the ownership of the group will be determined by aggregating the lowest number of shares continuously owned by each member during the three-year holding period. A nominating stockholder is considered to own only the shares for which the stockholder possesses the full voting and investment rights and the full economic interest (including the opportunity for profit and risk of loss). Under this provision, borrowed or hedged shares do not count as “owned” shares. Furthermore, to the extent not otherwise excluded pursuant to this definition of ownership, a nominating stockholder’s “short position” as defined in Rule 14e-4 under the Exchange Act is deducted from the shares otherwise “owned.” Loaned shares are counted toward the ownership requirement, provided that certain recall requirements described in our bylaws are met.
The maximum number of stockholder nominees permitted under the proxy access provisions of our bylaws shall not exceed the greater of (i) two or (ii) 20% of the directors in office as of the last day a notice of nomination may be timely received. If the 20% calculation does not result in a whole number, the maximum number of stockholder nominees is the closest whole number below 20%. If one or more vacancies occurs for any reason after the nomination deadline and our board decides to reduce the size of our board in connection therewith, the 20% calculation will be applied to the reduced size of the board, with the potential result that a stockholder nominee may be disqualified. Stockholder-nominated candidates whose nomination is withdrawn or whom the board determines to include in our proxy materials as board-nominated candidates will be counted against the 20% maximum. In addition, any director in office as of the nomination deadline who was included in our proxy materials as a stockholder nominee for either of the two preceding annual meetings and whom our board decides to renominate for election to the board also will be counted against the 20% maximum.
Notice of a nomination pursuant to the proxy access provisions of our bylaws must be received no earlier than 150 days and no later than 120 days before the anniversary of the date that we distributed our proxy statement for the previous year’s annual meeting of stockholders. The proxy access provisions of our bylaws require certain disclosure, representations and agreements to be provided or made by nominating stockholders and contain certain other procedural provisions.
A stockholder nominee will not be eligible for inclusion in our proxy materials (i) if any stockholder has nominated a person pursuant to the advance notice provision of our bylaws, (ii) if the nominee would not be independent, (iii) if the nominee’s election would cause us to violate our bylaws, our charter or any applicable listing standards, laws, rules or regulations, (iv) if the nominee is or has been an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, within the past three years, or (v) if the nominee or the stockholder who nominated him or her has provided false and misleading information to us or otherwise breached any of its or their obligations, representations or agreements under the proxy access provisions of our bylaws. Stockholder nominees who are included in our proxy materials but subsequently withdraw from or become ineligible or unavailable for election at the meeting or do not receive at least 10% of the votes cast in the election will be ineligible for nomination under the proxy access provisions of our bylaws for the next two annual meetings. A nomination made under the proxy access provisions of our bylaws will be disregarded at the annual meeting under certain circumstances described in our bylaws.
Anti-Takeover Effect of Provisions of Maryland Law and of the Charter and Bylaws
The provisions in the charter on removal of directors and business combinations, the business combinations and control share acquisition provisions of Maryland law, the unsolicited takeover provisions of Maryland law (if we elect to become subject to such provisions) and the provisions of our bylaws
relating to advance notice, proxy access and stockholder-requested special meetings may delay, defer or prevent a change of control or other transaction in which holders of some, or a majority, of the common stock might receive a premium for their common stock over the then prevailing market price or which such holders might believe to be otherwise in their best interests.
Limitation of Liability and Indemnification
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages. However, a Maryland corporation may not limit liability resulting from actual receipt of an improper benefit or profit in money, property or services. Also, liability resulting from active and deliberate dishonesty may not be eliminated if a final judgment establishes that the dishonesty is material to the cause of action. Our charter contains a provision which limits the liability of directors and officers for money damages to the maximum extent permitted by Maryland law. This provision does not limit our right or that of our stockholders to obtain equitable relief, such as an injunction or rescission.
Our bylaws obligate us, to the maximum extent permitted by Maryland law, to indemnify and, without requiring a preliminary determination as to the ultimate entitlement to indemnification, to pay or reimburse reasonable expenses before final disposition of a proceeding to:
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any present or former director or officer who is made a party to the proceeding by reason of his service in that capacity; or
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any individual who, while one of our directors or officers and at our request, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise and who is made a party to the proceeding by reason of his service in that capacity.
The bylaws authorize us, with the approval of our board, to provide indemnification and advancement of expenses to our agents and employees.
Unless limited by a corporation’s charter, Maryland law requires a corporation to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he is made a party by reason of his service in that capacity, or in the defense of any claim, issue or matter in the proceeding. Our charter does not alter this requirement.
Maryland law permits a corporation to indemnify its present and former directors and officers, among others, against:
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judgments;
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penalties;
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fines;
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settlements; and
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reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their service in those or other capacities.
Maryland law does not permit a corporation to indemnify its present and former directors and officers if it is established that:
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the act or omission of the director or officer was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty;
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the director or officer actually received an improper personal benefit in money, property or services; or
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in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
Under Maryland law, a Maryland corporation generally may not indemnify for an adverse judgment in a suit by or in the right of the corporation. Also, a Maryland corporation generally may not indemnify for a judgment of liability on the basis that personal benefit was improperly received. In either of these cases, a Maryland corporation may indemnify for expenses only if a court so orders.
Maryland law permits a corporation to advance reasonable expenses to a director or officer. First, however, the corporation must receive a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the corporation. The corporation must also receive a written undertaking, either by the director or officer or on his behalf, to repay the amount paid or reimbursed by the corporation if it shall ultimately be determined that the standard of conduct was not met. The termination of any proceeding by conviction, or upon a plea of nolo contendere or its equivalent, or an entry of any order of probation prior to judgment, creates a rebuttable presumption that the director or officer did not meet the requisite standard of conduct required for indemnification to be permitted.
It is the position of the SEC that indemnification of directors and officers for liabilities arising under the Securities Act is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
DESCRIPTION OF HEALTHPEAK OP, LLC’S OPERATING AGREEMENT
The following description summarizes certain provisions of the Operating Agreement of Healthpeak OP, LLC, or the operating agreement. This summary is not complete and is subject to, and is qualified in its entirety by reference to, the applicable provisions of the Maryland Limited Liability Company Act, or the Act, and the operating agreement. For a complete description, we refer you to the Act and the operating agreement. We have incorporated by reference our operating agreement as an exhibit to the registration statement of which this prospectus is a part. As used in this “Description of Healthpeak OP, LLC’s Operating Agreement,” references to “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc., in its capacity as the managing member of our operating company, and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
General
Substantially all of our assets are held by, and substantially all of our operations are conducted through, our operating company, either directly or through its subsidiaries. We are the managing member of our operating company, and, as of February 4, 2025, 702,496,191 common units of membership interests in our operating company, or common units, were outstanding and we owned 99.58% of the outstanding common units, in each case, including common units issuable upon conversion of vested LTIP Units (as described below) of our operating company. In connection with the conversion of Old Healthpeak into Healthpeak OP, LLC, we became the managing member and sole member of our operating company. Our operating company is also authorized to issue a class of units of membership interest designated as LTIP Units and additional classes of units of membership interest, each having the terms described below. The common units are not listed on any exchange nor are they quoted on any national market system.
Provisions in the operating agreement may delay or make more difficult unsolicited acquisitions of us or changes in our control. These provisions could discourage third parties from making proposals involving an unsolicited acquisition of us or change of our control, although some stockholders might consider such proposals, if made, desirable. These provisions also make it more difficult for third parties to alter the management structure of our operating company without the concurrence of our board of directors. These provisions include, among others:
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redemption rights of members and certain assignees of common units;
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transfer restrictions on common units and other membership interests;
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a requirement that we may not be removed as the managing member of our operating company without our consent;
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our ability in some cases to amend the operating agreement and to cause our operating company to issue preferred membership interests in our operating company with terms that we may determine, in either case, without the approval or consent of any non-managing member; and
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the right of the non-managing members to consent to certain transfers of our, in our capacity as managing member, membership interest (whether by sale, disposition, statutory merger or consolidation, liquidation or otherwise).
Purpose, Business and Management
Our operating company was formed for the purpose of conducting any business, enterprise or activity permitted by or under the Act, directly or through one or more partnerships, joint ventures, subsidiaries, business trusts, limited liability companies or similar arrangements.
In general, our board of directors manages the business and affairs of our operating company by directing our business and affairs, in our capacity as the sole managing member of our operating company. Except as otherwise expressly provided in the operating agreement and subject to the rights of holders of any class or series of membership interest, all management powers over the business and affairs of our operating company are exclusively vested in us, in our capacity as the sole managing member of our operating company, and no member will have any right to participate in or exercise control or management power
over the business and affairs of the operating company. We may not be removed as the managing member of our operating company, with or without cause, without our consent, which we may give or withhold in our sole and absolute discretion.
Restrictions on Managing Member’s Authority
The operating agreement prohibits us, in our capacity as managing member, from taking any action that would make it impossible to carry on the ordinary business of our operating company, except as otherwise provided in the operating agreement or with the consent of the non-managing members. We generally may not, without the prior consent of the members of our operating company (including us), amend, modify or terminate the operating agreement, except for certain amendments described in the operating agreement. We may not, in our capacity as the managing member of our operating company, except as otherwise provided in the operating agreement or with the consent of the non-managing members of the operating company:
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transfer all or any portion of our managing membership interest in our operating company or admit any person as a successor managing member, subject to the exceptions described in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member”; or
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voluntarily withdraw as the managing member.
Without the consent of each affected member or in connection with a transfer of all of our interests in our partnership in connection with a merger, consolidation or other combination of our assets with another entity, a sale of all or substantially all of our assets or a reclassification, recapitalization or change in our outstanding stock permitted without the consent of the members as described in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member,” or a permitted termination transaction, we may not enter into any contract, mortgage, loan or other agreement that, in the absence of any default of the managing member of its obligations thereunder, expressly prohibits or restricts us or our operating company from performing our or its specific obligations in connection with a redemption of units or expressly prohibits or restricts a limited partner from exercising its redemption rights in full. In addition to any approval or consent required by any other provision of the operating agreement, we may not, without the consent of each affected member, amend the operating agreement or take any other action that would:
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adversely modify in any material respect the limited liability of a member;
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alter the rights of any member to receive the distributions to which such member is entitled, or alter the allocations specified in the operating agreement, except to the extent permitted by the operating agreement including in connection with the creation or issuance of any new class or series of membership interest or to effect or facilitate a permitted termination transaction;
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alter or modify the redemption rights of holders of common units (except as permitted under the operating agreement to effect or facilitate a permitted termination transaction);
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alter or modify the provisions governing the transfer of our managing membership interest in our operating company (except as permitted under the operating agreement to effect or facilitate a permitted termination transaction);
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remove certain provisions of the operating agreement relating to the requirements for us to qualify as a REIT or permitting us to avoid paying tax under Sections 857 or 4981 of the Code; or
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amend the provisions of the operating agreement requiring the consent of each affected member before taking any of the actions described above or the related definitions specified in the operating agreement (except as permitted under the operating agreement to effect or facilitate a permitted termination transaction).
Additional Members
We may cause our operating company to issue additional units in one or more classes or series or other membership interests and to admit additional members to our operating company from time to time, on
such terms and conditions and for such capital contributions as we may establish in our sole and absolute discretion, without the approval or consent of any limited partner.
The operating agreement authorizes our operating company to issue common units, LTIP Units and preferred units, and our operating company may issue additional membership interests in one or more additional classes, or one or more series of any of such classes, with such designations, preferences, conversion and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption (including, without limitation, terms that may be senior or otherwise entitled to preference over existing units) as we may determine, in our sole and absolute discretion, without the approval of any additional members or any other person. Without limiting the generality of the foregoing, we may specify, as to any such class or series of membership interest, the allocations of items of operating company income, gain, loss, deduction and credit to each such class or series of membership interest.
Ability to Engage in Other Businesses; Conflicts of Interest
Without the consent of the members of the operating company, not to be unreasonably withheld, conditioned, or delayed, we may not conduct any business other than in connection with the ownership, acquisition and disposition of membership interests, the management of the business and affairs of our operating company, our operation as a reporting company with a class (or classes) of securities registered under the Exchange Act, our operations as a REIT, the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, financing or refinancing of any type related to our operating company or its assets or activities and such activities as are incidental to those activities discussed above. In general, we must contribute any assets or funds that we acquire to our operating company whether as capital contributions, loans or otherwise, as appropriate, in exchange for additional membership interests. We may, however, in our sole and absolute discretion, from time to time hold or acquire assets in our own name or otherwise other than through our operating company so long as we take commercially reasonable measures to ensure that the economic benefits and burdens of such property are otherwise vested in our operating company.
Distributions
Our operating company will distribute such amounts, at such times, as we may in our sole and absolute discretion determine:
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first, with respect to any membership interests that are entitled to any preference in distribution, including the preferred units, in accordance with the rights of the holders of such class(es) of membership interest, and, within each such class, among the holders of such class pro rata in proportion to their respective percentage interests of such class; and
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second, with respect to any membership interests that are not entitled to any preference in distribution, including the common units and, except as described below with respect to liquidating distributions and as may be provided in any incentive award plan or any applicable award agreement and the LTIP Units, in accordance with the rights of the holders of such class(es) of membership interest, and, within each such class, among the holders of each such class, pro rata in proportion to their respective percentage interests of such class.
Exculpation and Indemnification of Managing Member
The operating agreement provides that we are not liable to our operating company or any member for any action or omission taken in our capacity as managing member, for the debts or liabilities of our operating company or for the obligations of our operating company under the operating agreement, except for liability for our fraud, willful misconduct or gross negligence, or pursuant to any express indemnity we may give to our operating company or in connection with a redemption as described in the section entitled “— Redemption Rights of Qualifying Parties.” The operating agreement also provides that any obligation or liability in our capacity as the managing member of our operating company that may arise at any time under the operating agreement or any other instrument, transaction or undertaking contemplated by the operating agreement will be satisfied, if at all, out of our assets or the assets of our operating company only,
and no such obligation or liability will be personally binding upon any of our directors, stockholders, officers, employees or agents.
In our capacity as managing member, we are entitled to a presumption that any act or failure to act on the part of the managing member, and any decision or determination made by us, is presumed to satisfy our duties as the managing member, whether under the operating agreement or otherwise existing at law or in equity, and no act or failure to act by us, or decision or determination made by us (whether with respect to a change of control of the operating company or otherwise) shall be subject to any duty, standard of conduct, burden of proof or scrutiny, whether at law or in equity, or otherwise set forth in the operating agreement.
In addition, the operating agreement provides that, to the fullest extent that a Maryland corporation may indemnify and advance expenses to directors and officers of a Maryland corporation under the laws of the State of Maryland, the operating company will indemnify, and will pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, any indemnitee (as defined in the operating agreement) who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service as an indemnitee. The operating agreement provides that, without limitation, the foregoing indemnity will extend to any liability of any indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the operating company or any subsidiary of the operating company (including, without limitation, any indebtedness that the operating company or any subsidiary of the operating company has assumed or taken subject to). The operating agreement further provides that the operating company may indemnify each indemnitee to the fullest extent permitted by law and the operating agreement. The operating agreement provides that the termination of any proceeding by judgment, order or settlement does not create a presumption that the indemnitee did not meet the requisite standard of conduct set forth in the operating agreement, and that the termination of any proceeding by conviction of an indemnitee or upon a plea of nolo contendere or its equivalent by an indemnitee, or an entry of an order of probation against an indemnitee prior to judgment, does not create a presumption that such indemnitee acted in a manner contrary to that specified in the operating agreement with respect to the subject matter of such proceeding. The operating agreement further provides that any indemnification pursuant to the operating agreement will be made only out of the assets of the operating company, and neither the managing member nor any other holder will have any obligation to contribute to the capital of the operating company or otherwise provide funds to enable the operating company to fund its indemnification obligations under the operating agreement. Under the operating agreement, an “indemnitee” includes us, as managing member, each of our present or former directors and officers of the operating company or the managing member, and such other persons (including affiliates or employees of the managing member or the operating company) as the operating company may designate from time to time in its sole and absolute discretion.
The operating company’s obligation to indemnify or advance expenses under the operating agreement to any such person shall be reduced by any amount such person has actually received as indemnification or advancement of expenses from any other person, including the managing member or from any insurance policy or policies.
Business Combinations and Dissolution of our Operating Company
Subject to the limitations on the transfer of our interest in our operating company described in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member,” we generally have the exclusive power to cause our operating company to merge, reorganize, consolidate, sell all or substantially all of its assets or otherwise combine its assets with another entity. We may also elect to dissolve our operating company without the consent of any additional member.
Redemption Rights of Qualifying Parties
Beginning 14 months after first acquiring such common units, each member and some assignees of the members will have the right, subject to the terms and conditions set forth in the operating agreement, to require our operating company to redeem all or a portion of the common units held by such member or assignee in exchange for a cash amount per common unit equal to the value of one share of our common stock, determined in accordance with and subject to adjustment under the operating agreement. Our operating company’s obligation to redeem common units does not arise and is not binding against our operating
company until the 31st business day after we receive the holder’s notice of redemption or, if earlier, the day we notify the holder seeking redemption that we have declined to acquire some or all of the common units tendered for redemption.
On or before the close of business on the 30th business day after a holder of common units gives notice of redemption to us, we may, in our sole and absolute discretion but subject to the restrictions on the ownership and transfer of our stock set forth in our charter and described in the section entitled “Description of Capital Stock — Transfer and Ownership Restrictions Relating to Our Common Stock,” elect to acquire some or all of the common units tendered for redemption from the tendering party in exchange for shares of our common stock, based on an exchange ratio of one share of common stock for each common unit, subject to adjustment as provided in the operating agreement. The operating agreement does not require us to register, qualify or list any shares of common stock issued in exchange for common units with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange.
Transfers of Membership Interests
Restrictions on Transfers by Members. Until the expiration of 14 months after the date on which a member acquires a membership interest, no member generally may directly or indirectly transfer all or any portion of such membership interest without our consent, which we may give or withhold in our sole and absolute discretion, except for certain permitted transfers to certain affiliates, family members and charities, and certain pledges of membership interests, except as provided for in the operating agreement, to lending institutions in connection with bona fide loans. After the expiration of such initial holding period, the member will have the right to transfer all or any portion of its membership interest without our consent to any person that is an “accredited investor,” within the meaning set forth in Rule 501 promulgated under the Securities Act, upon ten business days prior notice to us, subject to certain provisions of our operating agreement and the satisfaction of conditions specified in the operating agreement, including minimum transfer requirements and our right of first refusal.
Restrictions on Transfers by the Managing Member. Except as described below, any transfer of all or any portion of our membership interest in our operating company, whether by sale, disposition, statutory merger or consolidation, liquidation or otherwise, must be approved by the consent of the non-managing members (excluding, for purposes of such consent, any outstanding LTIP Units). Subject to the rights of holders of any class or series of membership interest, we may transfer all (but not less than all) of our managing membership interest without the consent of the non-managing members in connection with a permitted termination transaction, which is a merger, consolidation or other combination of our assets with another entity, a sale of all or substantially all of our assets not in the ordinary course of business, or a reclassification, recapitalization or change in any outstanding shares of our stock or other outstanding equity interests, if:
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in connection with such event, all of the members will receive or have the right to elect to receive, for each common unit, the greatest amount of cash, securities or other property paid to a holder of one share of our common stock (subject to adjustment in accordance with the operating agreement) in the transaction and, if a purchase, tender or exchange offer is made and accepted by holders of our common stock in connection with the event, each holder of common units receives, or has the right to elect to receive, the greatest amount of cash, securities or other property that the holder would have received if it had exercised its redemption right and received shares of our common stock in exchange for its common units immediately before the expiration of the purchase, tender or exchange offer and had accepted the purchase, tender or exchange offer; or
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substantially all of the assets of our operating company will be owned by a surviving entity (which may be our operating company or another limited liability company or entity) in which the members of our operating company holding common units immediately before the event will hold a percentage interest based on the relative fair market value of the net assets of our operating company and the other net assets of the surviving entity immediately before the event, which interest will be on terms that are at least as favorable as the terms of the common units in effect immediately before the event and as those applicable to any other non-managing members or owners of the surviving entity and will include a right to redeem interests in the surviving entity for the consideration
described in the preceding bullet or cash on similar terms as those in effect with respect to the common units immediately before the event, or, if common equity securities of the person controlling the surviving entity are publicly traded, such common equity securities.
We may also transfer all (but not less than all) of our interest in our operating company to an affiliate of us without the consent of any non-managing members, subject to the rights of holders of any class or series of membership interest.
In addition, any transferee of our interest in our operating company must be admitted as a managing member of our operating company, assume, by operation of law or express agreement, all of our obligations as managing member under the operating agreement, accept all of the terms and conditions of the operating agreement and execute such instruments as may be necessary to effectuate the transferee’s admission as a managing member.
We may not voluntarily withdraw as the managing member of our operating company without the consent of a majority in interest of the non-managing members, other than upon the transfer of our entire interest in our operating company and the admission of our successor as a managing member of our operating company.
LTIP Units
Our operating company is authorized to issue a class of units of membership interest designated as “LTIP Units.” We may cause our operating company to issue LTIP Units to persons who provide services to or for the benefit of our operating company, for such consideration or for no consideration as we may determine to be appropriate, and we may admit such persons as members of our operating company, without the approval or consent of any additional member. Further, we may cause our operating company to issue LTIP Units in one or more classes or series, with such terms as we may determine, without the approval or consent of any additional member. LTIP Units may be subject to vesting, forfeiture and restrictions on transfer and receipt of distributions pursuant to the terms of any applicable equity-based plan and the terms of any award agreement relating to the issuance of the LTIP Units.
Conversion Rights. Vested LTIP Units are convertible at the option of each member and some assignees of the members (in each case, that hold vested LTIP Units) into common units, upon notice to us and our operating company, to the extent that the capital account balance of the LTIP unitholder with respect to all of his or her LTIP Units is at least equal to our capital account balance with respect to an equal number of common units. We may cause our operating company to convert vested LTIP Units eligible for conversion into an equal number of common units at any time, upon not less than three calendar days notice prior to the conversion date.
If we or our operating company is party to a transaction, including a merger, consolidation, sale of all or substantially all of our assets or other business combination, as a result of which common units are exchanged for or converted into the right, or holders of common units are otherwise entitled, to receive cash, securities or other property (or any combination thereof), we must cause our operating company to convert any vested LTIP Units then eligible for conversion into common units immediately before the transaction, taking into account any special allocations of income that would be made as a result of the transaction. Our operating company must use commercially reasonable efforts to cause each member (other than a party to such a transaction or an affiliate of such a party) holding LTIP Units that will be converted into common units in such a transaction to be afforded the right to receive the same kind and amount of cash, securities and other property (or any combination thereof) for such common units that each holder of common units receives in the transaction.
Transfer. Unless an applicable equity-based plan or the terms of an award agreement specify additional restrictions on transfer of LTIP Units, LTIP Units are transferable to the same extent, and subject to the same restrictions, as common units, as described above in the section entitled “— Transfers of Membership Interests.”
Voting Rights. Members holding LTIP Units are entitled to vote together as a class with members holding common units on all matters on which members holding common units are entitled to vote or consent, and may cast one vote for each LTIP Unit so held.
Adjustment of LTIP Units. If our operating company takes certain actions, including making a distribution of units on all outstanding common units, combining or subdividing the outstanding common units into a different number of common units or reclassifying the outstanding common units, we must adjust the number of outstanding LTIP Units or subdivide or combine outstanding LTIP Units to maintain a one-for-one conversion ratio and economic equivalence between common units and LTIP Units.
Preferred Units
Our operating company is authorized to issue preferred units. As of February 4, 2025, there are no preferred units issued or outstanding. Preferred units rank senior to the common units and LTIP Units. Holders of series preferred units are entitled to receive preferential cash distributions in an amount to be fixed at the time of issuance of such units. Holders of preferred units are also entitled to receive a liquidation preference in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of our operating company that are substantially similar to those of our preferred stock (but, in the case of distributions upon the liquidation, dissolution or winding up of the affairs of our operating company, only to the extent consistent with a liquidation in accordance with positive capital account balances). Preferred units are also subject to redemption by our operating company in connection with our reacquisition of shares of our preferred stock. See the section entitled “Description of Capital Stock — Preferred Stock.”
Conversion Rights. Preferred units will be converted into common units in the event of a conversion of our preferred stock, at the option of holders of shares of preferred stock pursuant to the articles supplementary designating the terms of the preferred stock, as described above in the section entitled “Description of Capital Stock — Preferred Stock.”
Transfer. Preferred units are transferrable to the same extent as common units, as described above in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member.”
Voting Rights. The managing member will not have any voting or consent rights in respect of its membership interest represented by the preferred units.
SELLING SECURITY HOLDERS
Information about any selling security holders, where applicable, will be set forth in a prospectus supplement, in a post-effective amendment or in filings we make with the SEC under the Exchange Act that are incorporated by reference.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of certain material U.S. federal income tax considerations regarding our election to be taxed as a REIT and the purchase, ownership and disposition of our capital stock or the operating company’s debt securities. Supplemental U.S. federal income tax considerations relevant to holders of the securities offered by this prospectus (including warrants, preferred stock and depositary shares and other debt securities) may be provided in the prospectus supplement or a free writing prospectus that relates to those securities or a document incorporated by reference in the prospectus supplement. For purposes of this discussion, references to “we,” “our” and “us” mean only Healthpeak Properties, Inc. and do not include any of its subsidiaries, except as otherwise indicated. This summary is for general information only and is not tax advice. The information in this summary is based on:
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the Code;
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current, temporary and proposed Treasury regulations promulgated under the Code (the “Treasury Regulations”);
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the legislative history of the Code;
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administrative interpretations and practices of the Internal Revenue Service (the “IRS”); and
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court decisions;
in each case, as of the date of this prospectus. In addition, the administrative interpretations and practices of the IRS include its practices and policies as expressed in private letter rulings that are not binding on the IRS except with respect to the particular taxpayers who requested and received those rulings. The sections of the Code and the corresponding Treasury Regulations that relate to qualification and taxation as a REIT are highly technical and complex. The following discussion sets forth certain material aspects of the sections of the Code that govern the U.S. federal income tax treatment of a REIT, its stockholders, and holders of the operating company’s debt securities. This summary is qualified in its entirety by the applicable Code provisions, Treasury Regulations promulgated under the Code, and administrative and judicial interpretations thereof. Potential tax reforms may result in significant changes to the rules governing U.S. federal income taxation. New legislation, Treasury Regulations, administrative interpretations and practices and/or court decisions may significantly and adversely affect our ability to qualify as a REIT, the U.S. federal income tax consequences of such qualification, or the U.S. federal income tax consequences of an investment in us, including those described in this discussion. Moreover, the law relating to the tax treatment of other entities, or an investment in other entities, could change, making an investment in such other entities more attractive relative to an investment in a REIT. Any such changes could apply retroactively to transactions preceding the date of the change. We have not requested, and do not plan to request, any rulings from the IRS that we qualify as a REIT, and the statements in this prospectus are not binding on the IRS or any court. Thus, we can provide no assurance that the tax considerations contained in this discussion will not be challenged by the IRS or will be sustained by a court if challenged by the IRS. This summary does not discuss any state, local or non-U.S. tax consequences, or any tax consequences arising under any U.S. federal tax laws other than U.S. federal income tax laws, associated with the purchase, ownership or disposition of our capital stock or the operating company’s debt securities, or our election to be taxed as a REIT.
You are urged to consult your tax advisors regarding the tax consequences to you of:
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the purchase, ownership and disposition of our capital stock and the operating company’s debt securities, including the U.S. federal, state, local, non-U.S. and other tax consequences;
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our election to be taxed as a REIT for U.S. federal income tax purposes; and
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potential changes in applicable tax laws.
Taxation of Our Company
General. Prior to the UPREIT reorganization, whereby the entity previously known as Healthpeak Properties, Inc. (“Old Healthpeak”) became a wholly owned subsidiary of Healthpeak in a transaction intended to qualify as a reorganization under Section 368(a)(1)(F) of the Code, Old Healthpeak was known as Healthpeak Properties, Inc. and Healthpeak was known as New Healthpeak, Inc. In connection with
the UPREIT reorganization, Old Healthpeak became a “qualified REIT subsidiary” of Healthpeak and Healthpeak changed its name to Healthpeak Properties, Inc. Old Healthpeak then converted into a Delaware limited liability company and changed its name to Healthpeak OP, LLC. Prior to the UPREIT reorganization, Old Healthpeak elected to be taxed as a REIT and was organized and operated in a manner intended to qualify as a REIT. As a result of the UPREIT reorganization, Healthpeak is treated as a continuation of Old Healthpeak for U.S. federal income tax purposes. Accordingly, references in this summary to “us,” “we,” or “our” include Old Healthpeak in its capacity as a REIT prior to the UPREIT reorganization, to the extent the context contemplates periods prior to the UPREIT reorganization.
We have elected to be taxed as a REIT under Sections 856 through 860 of the Code commencing with our initial taxable year ended December 31, 1985. We believe that we have been organized and have operated in a manner that has allowed us to qualify for taxation as a REIT under the Code commencing with such taxable year, and we intend to continue to be organized and operate in this manner. However, qualification and taxation as a REIT depend upon our ability to meet the various qualification tests imposed under the Code, including through actual operating results, asset composition, distribution levels and diversity of stock ownership. Accordingly, no assurance can be given that we have been organized and have operated, or will continue to be organized and operate, in a manner so as to qualify or remain qualified as a REIT. See “— Failure to Qualify” for potential tax consequences if we fail to qualify as a REIT.
Latham & Watkins LLP has acted as our tax counsel in connection with this prospectus and our election to be taxed as a REIT. Latham & Watkins LLP has rendered an opinion to us, as of the date of this prospectus, to the effect that, commencing with our taxable year ended December 31, 2015, we have been organized and have operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and our proposed method of operation will enable us to continue to meet the requirements for qualification and taxation as a REIT under the Code. It must be emphasized that this opinion was based on various assumptions and representations as to factual matters, including representations made by us in a factual certificate provided by one or more of our officers. In addition, this opinion was based upon our factual representations set forth in this prospectus. Moreover, our qualification and taxation as a REIT depend upon our ability to meet the various qualification tests imposed under the Code, which are discussed below, including through actual operating results, asset composition, distribution levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Latham & Watkins LLP. Accordingly, no assurance can be given that our actual results of operations for any particular taxable year have satisfied or will satisfy those requirements. Further, the anticipated U.S. federal income tax treatment described herein may be changed, perhaps retroactively, by legislative, administrative or judicial action at any time. Latham & Watkins LLP has no obligation to update its opinion subsequent to the date of such opinion.
Provided we qualify for taxation as a REIT, we generally will not be required to pay U.S. federal corporate income taxes on our REIT taxable income that is currently distributed to our stockholders. This treatment substantially eliminates the “double taxation” that ordinarily results from investment in a C corporation. A C corporation is a corporation that generally is required to pay U.S. federal income tax at the corporate level. Double taxation means taxation once at the corporate level when income is earned and once again at the stockholder level when the income is distributed. We will, however, be required to pay U.S. federal income tax as follows:
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First, we will be required to pay regular U.S. federal corporate income tax on any undistributed REIT taxable income, including undistributed capital gain.
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Second, if we have (1) net income from the sale or other disposition of “foreclosure property” held primarily for sale to customers in the ordinary course of business or (2) other nonqualifying income from foreclosure property, we will be required to pay regular U.S. federal corporate income tax on this income. To the extent that income from foreclosure property is otherwise qualifying income for purposes of the 75% gross income test, this tax is not applicable. Subject to certain other requirements, foreclosure property generally is defined as property we acquired through foreclosure or after a default on a loan secured by the property or a lease of the property. See “— Foreclosure Property.”
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Third, we will be required to pay a 100% tax on any net income from prohibited transactions. Prohibited transactions are, in general, sales or other taxable dispositions of property, other than foreclosure property, held as inventory or primarily for sale to customers in the ordinary course of business.
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Fourth, if we fail to satisfy the 75% gross income test or the 95% gross income test, as described below, but have otherwise maintained our qualification as a REIT because certain other requirements are met, we will be required to pay a tax equal to (1) the greater of (A) the amount by which we fail to satisfy the 75% gross income test and (B) the amount by which we fail to satisfy the 95% gross income test, multiplied by (2) a fraction intended to reflect our profitability.
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Fifth, if we fail to satisfy any of the asset tests (other than a de minimis failure of the 5% or 10% asset test), as described below, due to reasonable cause and not due to willful neglect, and we nonetheless maintain our REIT qualification because specified cure provisions are met, we will be required to pay a tax equal to the greater of $50,000 or the U.S. federal corporate income tax rate multiplied by the net income generated by the nonqualifying assets that caused us to fail such test.
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Sixth, if we fail to satisfy any provision of the Code that would result in our failure to qualify as a REIT (other than a violation of the gross income tests or certain violations of the asset tests, as described below) and the violation is due to reasonable cause and not due to willful neglect, we may retain our REIT qualification but we will be required to pay a penalty of $50,000 for each such failure.
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Seventh, we will be required to pay a 4% excise tax to the extent we fail to distribute during each calendar year at least the sum of (1) 85% of our ordinary income for the year, (2) 95% of our capital gain net income for the year, and (3) any undistributed taxable income from prior periods.
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Eighth, if we acquire any asset from a corporation that is or has been a C corporation in a transaction in which our tax basis in the asset is less than the fair market value of the asset, in each case determined as of the date on which we acquired the asset, and we subsequently recognize gain on the disposition of the asset during the five-year period beginning on the date on which we acquired the asset, then we generally will be required to pay regular U.S. federal corporate income tax on this gain to the extent of the excess of (1) the fair market value of the asset over (2) our adjusted tax basis in the asset, in each case determined as of the date on which we acquired the asset. The results described in this paragraph with respect to the recognition of gain assume that the C corporation will refrain from making an election to receive different treatment under applicable Treasury Regulations on its tax return for the year in which we acquire the asset from the C corporation. Under applicable Treasury Regulations, any gain from the sale of property we acquired in an exchange under Section 1031 (a like-kind exchange) or Section 1033 (an involuntary conversion) of the Code generally is excluded from the application of this built-in gains tax.
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Ninth, our subsidiaries that are C corporations and are not qualified REIT subsidiaries, including our “taxable REIT subsidiaries” described below, generally will be required to pay regular U.S. federal corporate income tax on their earnings.
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Tenth, we will be required to pay a 100% tax on any “redetermined rents,” “redetermined deductions,” “excess interest” or “redetermined TRS service income,” as described below under “— Penalty Tax.” In general, redetermined rents are rents from real property that are overstated as a result of services furnished to any of our tenants by a taxable REIT subsidiary of ours. Redetermined deductions and excess interest generally represent amounts that are deducted by a taxable REIT subsidiary of ours for amounts paid to us that are in excess of the amounts that would have been deducted based on arm’s length negotiations. Redetermined TRS service income generally represents income of a taxable REIT subsidiary that is understated as a result of services provided to us or on our behalf.
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Eleventh, we may elect to retain and pay income tax on our net capital gain. In that case, a stockholder would include its proportionate share of our undistributed capital gain (to the extent we make a timely designation of such gain to the stockholder) in its income, would be deemed to have paid the tax that we paid on such gain, and would be allowed a credit for its proportionate share of the tax deemed to have been paid, and an adjustment would be made to increase the tax basis of the stockholder in our capital stock.
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Twelfth, if we fail to comply with the requirement to send annual letters to our stockholders holding at least a certain percentage of our stock, as determined under applicable Treasury Regulations,
requesting information regarding the actual ownership of our stock, and the failure is not due to reasonable cause or is due to willful neglect, we will be subject to a $25,000 penalty, or if the failure is intentional, a $50,000 penalty.
We and our subsidiaries may be subject to a variety of taxes other than U.S. federal income tax, including payroll taxes and state and local income, property and other taxes on our assets and operations.
From time to time, we may own properties in other countries, which may impose taxes on our operations within their jurisdictions. To the extent possible, we will structure our activities to minimize our non-U.S. tax liability. However, there can be no assurance that we will be able to eliminate our non-U.S. tax liability or reduce it to a specified level. Furthermore, as a REIT, both we and our stockholders will derive little or no benefit from foreign tax credits arising from those non-U.S. taxes.
Requirements for Qualification as a REIT. The Code defines a REIT as a corporation, trust or association:
(1)
that is managed by one or more trustees or directors;
(2)
that issues transferable shares or transferable certificates to evidence its beneficial ownership;
(3)
that would be taxable as a domestic corporation, but for Sections 856 through 860 of the Code;
(4)
that is not a financial institution or an insurance company within the meaning of certain provisions of the Code;
(5)
that is beneficially owned by 100 or more persons;
(6)
not more than 50% in value of the outstanding stock of which is owned, actually or constructively, by five or fewer individuals, including certain specified entities, during the last half of each taxable year; and
(7)
that meets other tests, described below, regarding the nature of its income and assets and the amount of its distributions.
The Code provides that conditions (1) to (4), inclusive, must be met during the entire taxable year and that condition (5) must be met during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. Conditions (5) and (6) do not apply until after the first taxable year for which an election is made to be taxed as a REIT. For purposes of condition (6), the term “individual” includes a supplemental unemployment compensation benefit plan, a private foundation or a portion of a trust permanently set aside or used exclusively for charitable purposes, but generally does not include a qualified pension plan or profit sharing trust.
We believe that we have been organized and have operated in a manner that has allowed us, and will continue to allow us, to satisfy conditions (1) through (7), inclusive, during the relevant time periods. In addition, our charter provides for restrictions regarding ownership and transfer of our shares that are intended to assist us in continuing to satisfy the share ownership requirements described in conditions (5) and (6) above. A description of the share ownership and transfer restrictions relating to our capital stock is contained in the discussion in this prospectus under the headings “Description of Capital Stock — Transfer and Ownership Restrictions Relating to Our Common Stock” and “Description of Capital Stock — Transfer and Ownership Restrictions Relating to Our Preferred Stock.” These restrictions, however, do not ensure that we have previously satisfied, and may not ensure that we will, in all cases, be able to continue to satisfy, the share ownership requirements described in conditions (5) and (6) above. If we fail to satisfy these share ownership requirements, then except as provided in the next sentence, our status as a REIT will terminate. If, however, we comply with the rules contained in applicable Treasury Regulations that require us to ascertain the actual ownership of our shares and we do not know, or would not have known through the exercise of reasonable diligence, that we failed to meet the requirement described in condition (6) above, we will be treated as having met this requirement. See “— Failure to Qualify.”
In addition, we may not maintain our status as a REIT unless our taxable year is the calendar year. We have and will continue to have a calendar taxable year.
Ownership of Interests in Partnerships, Limited Liability Companies and Qualified REIT Subsidiaries. In the case of a REIT that is a partner in a partnership (for purposes of this discussion, references to “partnership” include a limited liability company treated as a partnership for U.S. federal income tax purposes, and references to “partner” include a member in such a limited liability company), Treasury Regulations provide that the REIT will be deemed to own its proportionate share of the assets of the partnership based on its interest in partnership capital, subject to special rules relating to the 10% asset test described below. Also, the REIT will be deemed to be entitled to its proportionate share of the income of that entity. The assets and gross income of the partnership retain the same character in the hands of the REIT for purposes of Section 856 of the Code, including satisfying the gross income tests and the asset tests. Thus, our pro rata share of the assets and items of income of any partnership or disregarded entity for U.S. federal income tax purposes in which we own an interest is treated as our assets and items of income for purposes of applying the requirements described in this discussion, including the gross income and asset tests described below. A brief summary of the rules governing the U.S. federal income taxation of partnerships is set forth below in “— Tax Aspects of the Operating Company and the Subsidiary Partnerships and Limited Liability Companies.”
We generally have control of the operating company and the subsidiary partnerships and intend to operate them in a manner consistent with the requirements for our qualification as a REIT. If we become a limited partner or non-managing member in any partnership and such entity takes or expects to take actions that could jeopardize our status as a REIT or require us to pay tax, we may be forced to dispose of our interest in such entity. In addition, it is possible that a partnership could take an action which could cause us to fail a gross income or asset test, and that we would not become aware of such action in time to dispose of our interest in the partnership or take other corrective action on a timely basis. In such a case, we could fail to qualify as a REIT unless we were entitled to relief, as described below.
We may from time to time own and operate certain properties through wholly owned subsidiaries that we intend to be treated as “qualified REIT subsidiaries” under the Code. A corporation (or other entity treated as a corporation for U.S. federal income tax purposes) will qualify as our qualified REIT subsidiary if we own 100% of the corporation’s outstanding stock and do not elect with the subsidiary to treat it as a “taxable REIT subsidiary,” as described below. A qualified REIT subsidiary is not treated as a separate corporation, and all assets, liabilities and items of income, gain, loss, deduction and credit of a qualified REIT subsidiary are treated as assets, liabilities and items of income, gain, loss, deduction and credit of the parent REIT for all purposes under the Code, including all REIT qualification tests. Thus, in applying the U.S. federal income tax requirements described in this discussion, any qualified REIT subsidiaries we own are ignored, and all assets, liabilities and items of income, gain, loss, deduction and credit of such corporations are treated as our assets, liabilities and items of income, gain, loss, deduction and credit. A qualified REIT subsidiary is not subject to U.S. federal income tax, and our ownership of the stock of a qualified REIT subsidiary will not violate the restrictions on ownership of securities, as described below under “— Asset Tests.”
Ownership of Interests in Taxable REIT Subsidiaries. We and the operating company own interests in companies that have elected, together with us, to be treated as our taxable REIT subsidiaries, and we may acquire securities in additional taxable REIT subsidiaries in the future. A taxable REIT subsidiary is a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) other than a REIT in which a REIT directly or indirectly holds stock, and that has made a joint election with such REIT to be treated as a taxable REIT subsidiary. If a taxable REIT subsidiary owns more than 35% of the total voting power or value of the outstanding securities of another corporation, such other corporation will also be treated as a taxable REIT subsidiary. Other than directly or indirectly operating or managing a lodging or healthcare facility, or directly or indirectly providing to any other person (under a franchise, license or otherwise) rights to any brand name under which any lodging or healthcare facility is operated, a taxable REIT subsidiary may generally engage in any business, including the provision of customary or non-customary services to tenants of its parent REIT. A taxable REIT subsidiary is subject to U.S. federal income tax as a regular C corporation. A REIT is not treated as holding the assets of a taxable REIT subsidiary or as receiving any income that the taxable REIT subsidiary earns. Rather, the stock issued by the taxable REIT subsidiary is an asset in the hands of the REIT, and the REIT generally recognizes as income the dividends, if any, that it receives from the taxable REIT subsidiary. A REIT’s ownership of securities of a taxable REIT subsidiary is not subject to the 5% or 10% asset test described below. See “— Asset Tests.”
Taxpayers are subject to a limitation on their ability to deduct net business interest generally equal to 30% of adjusted taxable income, subject to certain exceptions. For any taxable year beginning in 2019 or 2020, the 30% limitation has been increased to a 50% limitation, provided that for partnerships the 50% limitation applies for any taxable year beginning in 2020 only. Taxpayers may elect to use their 2019 adjusted taxable income for purposes of computing their 2020 limitation. See “— Annual Distribution Requirements.” While not certain, this provision may limit the ability of our taxable REIT subsidiaries to deduct interest, which could increase their taxable income.
Ownership of Interests in Subsidiary REITs. We own and may acquire direct or indirect interests in one or more entities that have elected or will elect to be taxed as REITs under the Code (each, a “Subsidiary REIT”). A Subsidiary REIT is subject to the various REIT qualification requirements and other limitations described herein that are applicable to us. If a Subsidiary REIT were to fail to qualify as a REIT, then (i) that Subsidiary REIT would become subject to U.S. federal income tax and (ii) the Subsidiary REIT’s failure to qualify could have an adverse effect on our ability to comply with the REIT income and asset tests, and thus could impair our ability to qualify as a REIT unless we could avail ourselves of certain relief provisions.
Income Tests. We must satisfy two gross income requirements annually to maintain our qualification as a REIT. First, in each taxable year we must derive directly or indirectly at least 75% of our gross income (excluding gross income from prohibited transactions, certain hedging transactions, certain foreign currency gains and discharge of indebtedness) from investments relating to real property or mortgages on real property, including “rents from real property,” dividends from other REITs and, in certain circumstances, interest, or certain types of temporary investments. Second, in each taxable year we must derive at least 95% of our gross income (excluding gross income from prohibited transactions, certain hedging transactions and certain foreign currency gains) from the real property investments described above or dividends, interest and gain from the sale or disposition of stock or securities, or from any combination of the foregoing. For these purposes, the term “interest” generally does not include any amount received or accrued, directly or indirectly, if the determination of all or some of the amount depends in any way on the income or profits of any person. However, an amount received or accrued generally will not be excluded from the term “interest” solely by reason of being based on a fixed percentage or percentages of receipts or sales.
Rents we receive from a tenant will qualify as “rents from real property” for the purpose of satisfying the gross income requirements for a REIT described above only if all of the following conditions are met:
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The amount of rent is not based in whole or in part on the income or profits of any person. However, an amount we receive or accrue generally will not be excluded from the term “rents from real property” solely because it is based on a fixed percentage or percentages of receipts or sales or if it is based on the net income of a tenant which derives substantially all of its income with respect to such property from subleasing of substantially all of such property, to the extent that the rents paid by the subtenants would qualify as rents from real property if we earned such amounts directly;
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Neither we nor an actual or constructive owner of 10% or more of our capital stock actually or constructively owns 10% or more of the interests in the assets or net profits of a non-corporate tenant, or, if the tenant is a corporation, 10% or more of the total combined voting power of all classes of stock entitled to vote or 10% or more of the total value of all classes of stock of the tenant. Rents we receive from such a tenant that is a taxable REIT subsidiary of ours, however, will not be excluded from the definition of “rents from real property” as a result of this condition if at least 90% of the space at the property to which the rents relate is leased to third parties, and the rents paid by the taxable REIT subsidiary are substantially comparable to rents paid by our other tenants for comparable space. Whether rents paid by a taxable REIT subsidiary are substantially comparable to rents paid by other tenants is determined at the time the lease with the taxable REIT subsidiary is entered into, extended, and modified, if such modification increases the rents due under such lease. Notwithstanding the foregoing, however, if a lease with a “controlled taxable REIT subsidiary” is modified and such modification results in an increase in the rents payable by such taxable REIT subsidiary, any such increase will not qualify as “rents from real property.” For purposes of this rule, a “controlled taxable REIT subsidiary” is a taxable REIT subsidiary in which the parent REIT owns stock possessing more than 50% of the voting power or more than 50% of the total value of the outstanding stock of such taxable REIT subsidiary;
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Rent attributable to personal property, leased in connection with a lease of real property, is not greater than 15% of the total rent received under the lease. If this condition is not met, then the portion of the rent attributable to personal property will not qualify as “rents from real property.” To the extent that rent attributable to personal property, leased in connection with a lease of real property, exceeds 15% of the total rent received under the lease, we may transfer a portion of such personal property to a taxable REIT subsidiary; and
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We generally may not operate or manage the property or furnish or render services to our tenants, subject to a 1% de minimis exception and except as provided below. We may, however, perform services that are “usually or customarily rendered” in connection with the rental of space for occupancy only and are not otherwise considered “rendered to the occupant” of the property. Examples of these services include the provision of light, heat, or other utilities, trash removal and general maintenance of common areas. In addition, we may employ an independent contractor from whom we derive no revenue to provide customary services to our tenants, or a taxable REIT subsidiary (which may be wholly or partially owned by us) to provide both customary and non-customary services to our tenants, without causing the rent we receive from those tenants to fail to qualify as “rents from real property.”
A portion of our rental income is derived from leases of health care properties to our taxable REIT subsidiaries. In order for the rent payable under each of these leases to constitute “rents from real property,” each lease must be respected as a true lease for U.S. federal income tax purposes and must not be treated as a service contract, joint venture, or some other type of arrangement. We believe that each such lease is a true lease for U.S. federal income tax purposes. However, this determination is inherently a question of fact, and we cannot assure you that the IRS will not successfully assert a contrary position. If any lease is not respected as a true lease, part or all of the payments that we receive as rent from our taxable REIT subsidiary with respect to such lease may not be considered rent or may not otherwise satisfy the various requirements for qualification as “rents from real property.” In that case, we may not be able to satisfy either the 75% or 95% gross income test and, as a result, could fail to qualify as a REIT.
Also, our taxable REIT subsidiaries may not operate or manage a health care property or provide rights to any brand name under which any health care property is operated. However, rents we receive from a lease of a health care property to our taxable REIT subsidiary will constitute “rents from real property” if the following conditions are satisfied:
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First, the health care property must be a “qualified health care property.” A qualified health care property is any real property (including interests therein), and any personal property incident to such real property, which is (or is necessary or incidental to the use of) a hospital, nursing facility, assisted living facility, congregate care facility, qualified continuing care facility, or other licensed facility which extends medical or nursing or ancillary services to patients and which is operated by a provider of such services which is eligible for participation in Medicare with respect to such facility; and
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Second, the health care property must be managed by an “eligible independent contractor.” An eligible independent contractor is an independent contractor that, at the time the management contract is entered into, is actively engaged in the trade or business of operating qualified health care properties for any person not related to us or any of our taxable REIT subsidiaries. For this purpose, an independent contractor means any person (i) that does not own (taking into account relevant attribution rules) more than 35% of our capital stock, and (ii) with respect to which no person or group owning directly or indirectly (taking into account relevant attribution rules) 35% or more of our capital stock owns 35% or more directly or indirectly (taking into account relevant attribution rules) of the ownership interest.
We believe each health care property that we lease to our taxable REIT subsidiaries is a qualified health care property, and each health care property manager engaged by our taxable REIT subsidiaries to manage each health care property is an eligible independent contractor. Furthermore, while we will monitor the activities of the eligible independent contractors to maximize the value of our health care property investments, neither we nor our taxable REIT subsidiary lessees will directly or indirectly operate or manage our health care properties. Thus, we believe that the rents we derive from our taxable REIT subsidiaries with respect to the leases of our health care properties will qualify as “rents from real property.”
We generally do not intend, and, as the managing member of the operating company, we do not intend to permit the operating company, to take actions we believe will cause us to fail to satisfy the rental conditions described above. However, we may intentionally fail to satisfy some of these conditions to the extent we determine, based on the advice of our tax counsel, that the failure will not jeopardize our tax status as a REIT. In addition, with respect to the limitation on the rental of personal property, we generally have not obtained appraisals of the real property and personal property leased to tenants. Accordingly, there can be no assurance that the IRS will not disagree with our determinations of value.
Income we receive that is attributable to the rental of parking spaces at the properties generally will constitute rents from real property for purposes of the gross income tests if certain services provided with respect to the parking spaces are performed by independent contractors from whom we derive no revenue, either directly or indirectly, or by a taxable REIT subsidiary, and certain other conditions are met. We believe that the income we receive that is attributable to parking spaces will meet these tests and, accordingly, will constitute rents from real property for purposes of the gross income tests.
From time to time, we may enter into hedging transactions with respect to one or more of our assets or liabilities. Our hedging activities may include entering into interest rate swaps, caps, and floors, options to purchase these items, and futures and forward contracts. Income from a hedging transaction, including gain from the sale or disposition of such a transaction, that is clearly identified as a hedging transaction as specified in the Code will not constitute gross income under, and thus will be exempt from, the 75% and 95% gross income tests. The term “hedging transaction,” as used above, generally means (A) any transaction we enter into in the normal course of our business primarily to manage risk of (1) interest rate changes or fluctuations with respect to borrowings made or to be made by us to acquire or carry real estate assets, or (2) currency fluctuations with respect to an item of qualifying income under the 75% or 95% gross income test or any property which generates such income and (B) new transactions entered into to hedge the income or loss from prior hedging transactions, where the property or indebtedness which was the subject of the prior hedging transaction was extinguished or disposed of. To the extent that we do not properly identify such transactions as hedges or we hedge with other types of financial instruments, the income from those transactions is not likely to be treated as qualifying income for purposes of the gross income tests. We intend to structure any hedging transactions in a manner that does not jeopardize our status as a REIT.
From time to time we may invest in additional entities or properties located outside the United States, through a taxable REIT subsidiary or otherwise. These acquisitions could cause us to incur foreign currency gains or losses. Any foreign currency gains, to the extent attributable to specified items of qualifying income or gain, or specified qualifying assets, however, generally will not constitute gross income for purposes of the 75% and 95% gross income tests, and therefore will be excluded from these tests.
To the extent our taxable REIT subsidiaries pay dividends or interest, our allocable share of such dividend or interest income will qualify under the 95%, but not the 75%, gross income test (except that our allocable share of such interest will also qualify under the 75% gross income test to the extent the interest is paid on a loan that is adequately secured by real property).
We will monitor the amount of the dividend and other income from our taxable REIT subsidiaries and will take actions intended to keep this income, and any other nonqualifying income, within the limitations of the gross income tests. Although we expect these actions will be sufficient to prevent a violation of the gross income tests, we cannot guarantee that such actions will in all cases prevent such a violation.
If we fail to satisfy one or both of the 75% or 95% gross income tests for any taxable year, we may nevertheless qualify as a REIT for the year if we are entitled to relief under certain provisions of the Code. We generally may make use of the relief provisions if:
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following our identification of the failure to meet the 75% or 95% gross income tests for any taxable year, we file a schedule with the IRS setting forth each item of our gross income for purposes of the 75% or 95% gross income tests for such taxable year in accordance with Treasury Regulations to be issued; and
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our failure to meet these tests was due to reasonable cause and not due to willful neglect.
It is not possible, however, to state whether in all circumstances we would be entitled to the benefit of these relief provisions. For example, if we fail to satisfy the gross income tests because nonqualifying income
that we intentionally accrue or receive exceeds the limits on nonqualifying income, the IRS could conclude that our failure to satisfy the tests was not due to reasonable cause. If these relief provisions do not apply to a particular set of circumstances, we will not qualify as a REIT. See “— Failure to Qualify” below. As discussed above in “— General,” even if these relief provisions apply, and we retain our status as a REIT, a tax would be imposed with respect to our nonqualifying income. We may not always be able to comply with the gross income tests for REIT qualification despite periodic monitoring of our income.
Prohibited Transaction Income. Any gain that we realize on the sale of property (other than any foreclosure property) held as inventory or otherwise held primarily for sale to customers in the ordinary course of business, including our share of any such gain realized by the operating company, either directly or through its subsidiary partnerships, will be treated as income from a prohibited transaction that is subject to a 100% penalty tax, unless certain safe harbor exceptions apply. This prohibited transaction income may also adversely affect our ability to satisfy the gross income tests for qualification as a REIT. Under existing law, whether property is held as inventory or primarily for sale to customers in the ordinary course of a trade or business is a question of fact that depends on all the facts and circumstances surrounding the particular transaction. As the managing member of the operating company, we intend to cause the operating company to hold its properties for investment with a view to long-term appreciation, to engage in the business of acquiring, developing and owning its properties and to make occasional sales of the properties as are consistent with our investment objectives. We do not intend, and do not intend to permit the operating company or its subsidiary partnerships, to enter into any sales that are prohibited transactions. However, the IRS may successfully contend that some or all of the sales made by the operating company or its subsidiary partnerships are prohibited transactions. We would be required to pay the 100% penalty tax on our allocable share of the gains resulting from any such sales. The 100% penalty tax will not apply to gains from the sale of assets that are held through a taxable REIT subsidiary, but such income will be subject to regular U.S. federal corporate income tax.
Penalty Tax. Any redetermined rents, redetermined deductions, excess interest or redetermined TRS service income we generate will be subject to a 100% penalty tax. In general, redetermined rents are rents from real property that are overstated as a result of any services furnished to any of our tenants by a taxable REIT subsidiary of ours, redetermined deductions and excess interest represent any amounts that are deducted by a taxable REIT subsidiary of ours for amounts paid to us that are in excess of the amounts that would have been deducted based on arm’s length negotiations, and redetermined TRS service income is income of a taxable REIT subsidiary that is understated as a result of services provided to us or on our behalf. Rents we receive will not constitute redetermined rents if they qualify for certain safe harbor provisions contained in the Code.
We do not believe we have been, and do not expect to be, subject to this penalty tax, although any rental or service arrangements we enter into from time to time may not satisfy the safe harbor provisions referenced above.
Currently, certain of our taxable REIT subsidiaries provide services to certain of our tenants and may pay us rent and, from time to time, we may enter into additional leases or arrangements with our taxable REIT subsidiaries to provide services to our tenants. We believe we have set, and we intend to set in the future, any fees paid to our taxable REIT subsidiaries for such services, and any rent payable to us by our taxable REIT subsidiaries, at arm’s length rates, although the amounts paid may not satisfy the safe harbor provisions referenced above. These determinations are inherently factual, and the IRS has broad discretion to assert that amounts paid between related parties should be reallocated to clearly reflect their respective incomes. If the IRS successfully made such an assertion, we would be required to pay a 100% penalty tax on any overstated rents paid to us, or any excess deductions or understated income of our taxable REIT subsidiaries.
Asset Tests. At the close of each calendar quarter of our taxable year, we must also satisfy certain tests relating to the nature and diversification of our assets. First, at least 75% of the value of our total assets must be represented by real estate assets, cash, cash items and U.S. government securities. For purposes of this test, the term “real estate assets” generally means real property (including interests in real property and interests in mortgages on real property or on both real property and, to a limited extent, personal property), shares (or transferable certificates of beneficial interest) in other REITs, any stock or debt instrument attributable to the investment of the proceeds of a stock offering or a public offering of debt with a term of at least five years (but only for the one-year period beginning on the date the REIT receives
such proceeds), debt instruments of publicly offered REITs, and personal property leased in connection with a lease of real property for which the rent attributable to personal property is not greater than 15% of the total rent received under the lease.
Second, not more than 25% of the value of our total assets may be represented by securities (including securities of taxable REIT subsidiaries), other than those securities includable in the 75% asset test.
Third, of the investments included in the 25% asset class, and except for certain investments in other REITs, our qualified REIT subsidiaries and taxable REIT subsidiaries, the value of any one issuer’s securities may not exceed 5% of the value of our total assets, and we may not own more than 10% of the total vote or value of the outstanding securities of any one issuer. Certain types of securities we may own are disregarded as securities solely for purposes of the 10% value test, including, but not limited to, securities satisfying the “straight debt” safe harbor, securities issued by a partnership that itself would satisfy the 75% income test if it were a REIT, any loan to an individual or an estate, any obligation to pay rents from real property and any security issued by a REIT. In addition, solely for purposes of the 10% value test, the determination of our interest in the assets of a partnership in which we own an interest will be based on our proportionate interest in any securities issued by the partnership, excluding for this purpose certain securities described in the Code. From time to time we may own securities (including debt securities) of issuers that do not qualify as a REIT, a qualified REIT subsidiary or a taxable REIT subsidiary. We intend that our ownership of any such securities will be structured in a manner that allows us to comply with the asset tests described above.
Fourth, not more than 20% (25% for taxable years beginning after July 30, 2008 and before January 1, 2018) of the value of our total assets may be represented by the securities of one or more taxable REIT subsidiaries. We and the operating company own interests in companies that have elected, together with us, to be treated as our taxable REIT subsidiaries, and we may acquire securities in additional taxable REIT subsidiaries in the future. So long as each of these companies qualifies as a taxable REIT subsidiary of ours, we will not be subject to the 5% asset test, the 10% voting securities limitation or the 10% value limitation with respect to our ownership of the securities of such companies. We believe that the aggregate value of our taxable REIT subsidiaries has not exceeded, and in the future will not exceed, 20% (25% for taxable years beginning after July 30, 2008 and before January 1, 2018) of the aggregate value of our gross assets. We generally do not obtain independent appraisals to support these conclusions. In addition, there can be no assurance that the IRS will not disagree with our determinations of value.
Fifth, not more than 25% of the value of our total assets may be represented by debt instruments of publicly offered REITs to the extent those debt instruments would not be real estate assets but for the inclusion of debt instruments of publicly offered REITs in the meaning of real estate assets, as described above (e.g., a debt instrument issued by a publicly offered REIT that is not secured by a mortgage on real property).
In addition, we may own or acquire certain mezzanine loans secured by equity interests in pass-through entities that directly or indirectly own real property. Revenue Procedure 2003-65 (the “Revenue Procedure”) provides a safe harbor pursuant to which mezzanine loans meeting the requirements of the safe harbor will be treated by the IRS as real estate assets for purposes of the REIT asset tests. In addition, any interest derived from such mezzanine loans will be treated as qualifying mortgage interest for purposes of the 75% gross income test (described above). Although the Revenue Procedure provides a safe harbor on which taxpayers may rely, it does not prescribe rules of substantive tax law. The mezzanine loans that we own or acquire may not meet all of the requirements of the safe harbor. Accordingly, there can be no assurance that the IRS will not challenge the qualification of such assets as real estate assets or the interest generated by these loans as qualifying income under the 75% gross income test (described above).
The asset tests must be satisfied at the close of each calendar quarter of our taxable year in which we (directly or through any partnership or qualified REIT subsidiary) acquire securities in the applicable issuer, and also at the close of each calendar quarter in which we increase our ownership of securities of such issuer (including as a result of an increase in our interest in any partnership that owns such securities). For example, our indirect ownership of securities of each issuer will increase as a result of our capital contributions to, or the redemption of other partners’ or members’ interests in, a partnership in which we have an ownership interest. Also, after initially meeting the asset tests at the close of any quarter, we will not lose our status as a REIT for failure to satisfy the asset tests at the end of a later quarter solely by reason of
changes in asset values. If we fail to satisfy an asset test because we acquire securities or other property during a quarter (including as a result of an increase in our interest in any partnership), we may cure this failure by disposing of sufficient nonqualifying assets within 30 days after the close of that quarter. We believe that we have maintained, and we intend to maintain, adequate records of the value of our assets to ensure compliance with the asset tests. If we fail to cure any noncompliance with the asset tests within the 30-day cure period, we would cease to qualify as a REIT unless we are eligible for certain relief provisions discussed below.
Certain relief provisions may be available to us if we discover a failure to satisfy the asset tests described above after the 30-day cure period. Under these provisions, we will be deemed to have met the 5% and 10% asset tests if the value of our nonqualifying assets (i) does not exceed the lesser of (a) 1% of the total value of our assets at the end of the applicable quarter or (b) $10,000,000, and (ii) we dispose of the nonqualifying assets or otherwise satisfy such tests within (a) six months after the last day of the quarter in which the failure to satisfy the asset tests is discovered or (b) the period of time prescribed by Treasury Regulations to be issued. For violations of any of the asset tests due to reasonable cause and not due to willful neglect and that are, in the case of the 5% and 10% asset tests, in excess of the de minimis exception described above, we may avoid disqualification as a REIT after the 30-day cure period by taking steps including (i) the disposition of sufficient nonqualifying assets, or the taking of other actions, which allow us to meet the asset tests within (a) six months after the last day of the quarter in which the failure to satisfy the asset tests is discovered or (b) the period of time prescribed by Treasury Regulations to be issued, (ii) paying a tax equal to the greater of (a) $50,000 or (b) the U.S. federal corporate income tax rate multiplied by the net income generated by the nonqualifying assets, and (iii) disclosing certain information to the IRS.
Although we believe we have satisfied the asset tests described above and plan to take steps to ensure that we satisfy such tests for any quarter with respect to which retesting is to occur, there can be no assurance that we will always be successful, or will not require a reduction in the operating company’s overall interest in an issuer (including in a taxable REIT subsidiary). If we fail to cure any noncompliance with the asset tests in a timely manner, and the relief provisions described above are not available, we would cease to qualify as a REIT.
Annual Distribution Requirements. To maintain our qualification as a REIT, we are required to distribute dividends, other than capital gain dividends, to our stockholders each year in an amount at least equal to the sum of:
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90% of our REIT taxable income; and
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90% of our after-tax net income, if any, from foreclosure property; minus
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the excess of the sum of certain items of non-cash income over 5% of our REIT taxable income.
For these purposes, our REIT taxable income is computed without regard to the dividends paid deduction and our net capital gain. In addition, for purposes of this test, non-cash income generally means income attributable to leveled stepped rents, original issue discount, cancellation of indebtedness, or a like-kind exchange that is later determined to be taxable.
In addition, our REIT taxable income will be reduced by any taxes we are required to pay on any gain we recognize from the disposition of any asset we acquired from a corporation that is or has been a C corporation in a transaction in which our tax basis in the asset is less than the fair market value of the asset, in each case determined as of the date on which we acquired the asset, within the five-year period following our acquisition of such asset, as described above under “— General.”
Except as provided below, a taxpayer’s deduction for net business interest expense will generally be limited to 30% of its taxable income, as adjusted for certain items of income, gain, deduction or loss. Any business interest deduction that is disallowed due to this limitation may be carried forward to future taxable years, subject to special rules applicable to partnerships. If we or any of our subsidiary partnerships are subject to this interest expense limitation, our REIT taxable income for a taxable year may be increased. Taxpayers that conduct certain real estate businesses may elect not to have this interest expense limitation apply to them, provided that they use an alternative depreciation system to depreciate certain property. If such election is made, although we or such subsidiary partnership, as applicable, would not be subject to the
interest expense limitation described above, depreciation deductions may be reduced and, as a result, our REIT taxable income for a taxable year may be increased.
We generally must pay, or be treated as paying, the distributions described above in the taxable year to which they relate. At our election, a distribution will be treated as paid in a taxable year if it is declared before we timely file our tax return for such year and paid on or before the first regular dividend payment after such declaration, provided such payment is made during the 12-month period following the close of such year. These distributions are treated as received by our stockholders in the year in which they are paid. This is so even though these distributions relate to the prior year for purposes of the 90% distribution requirement. In order to be taken into account for purposes of our distribution requirement, except as provided below, the amount distributed must not be preferential — i.e., every stockholder of the class of stock to which a distribution is made must be treated the same as every other stockholder of that class, and no class of stock may be treated other than according to its dividend rights as a class. This preferential dividend limitation will not apply to distributions made by us, provided we qualify as a “publicly offered REIT.” We believe that we are, and expect we will continue to be, a publicly offered REIT. However, Subsidiary REITs we may own from time to time may not be publicly offered REITs. To the extent that we do not distribute all of our net capital gain, or distribute at least 90%, but less than 100%, of our REIT taxable income, as adjusted, we will be required to pay regular U.S. federal corporate income tax on the undistributed amount. We believe that we have made, and we intend to continue to make, timely distributions sufficient to satisfy these annual distribution requirements and to minimize our corporate tax obligations. In this regard, the operating agreement of the operating company authorizes us, as the managing member of the operating company, to take such steps as may be necessary to cause the operating company to distribute to its partners an amount sufficient to permit us to meet these distribution requirements and to minimize our U.S. federal corporate income tax obligation.
We expect that our REIT taxable income will be less than our cash flow because of depreciation and other non-cash charges included in computing REIT taxable income. Accordingly, we anticipate that we generally will have sufficient cash or liquid assets to enable us to satisfy the distribution requirements described above. However, from time to time, we may not have sufficient cash or other liquid assets to meet these distribution requirements due to timing differences between the actual receipt of income and actual payment of deductible expenses, and the inclusion of income and deduction of expenses in determining our taxable income. In addition, we may decide to retain our cash, rather than distribute it, in order to repay debt or for other reasons. If these timing differences occur, we may borrow funds to pay dividends or pay dividends in the form of taxable stock distributions in order to meet the distribution requirements, while preserving our cash.
Under some circumstances, we may be able to rectify an inadvertent failure to meet the 90% distribution requirement for a year by paying “deficiency dividends” to our stockholders in a later year, which may be included in our deduction for dividends paid for the earlier year. In that case, we may be able to avoid being taxed on amounts distributed as deficiency dividends, subject to the 4% excise tax described below. However, we will be required to pay interest to the IRS based upon the amount of any deduction claimed for deficiency dividends. While the payment of a deficiency dividend will apply to a prior year for purposes of our REIT distribution requirements, it will be treated as an additional distribution to our stockholders in the year such dividend is paid.
Furthermore, we will be required to pay a 4% excise tax to the extent we fail to distribute during each calendar year at least the sum of 85% of our ordinary income for such year, 95% of our capital gain net income for the year and any undistributed taxable income from prior periods. Any ordinary income and net capital gain on which U.S. federal corporate income tax is imposed for any year is treated as an amount distributed during that year for purposes of calculating this excise tax.
For purposes of the 90% distribution requirement and excise tax described above, dividends declared during the last three months of the taxable year, payable to stockholders of record on a specified date during such period and paid during January of the following year, will be treated as paid by us and received by our stockholders on December 31 of the year in which they are declared.
Like-Kind Exchanges. We may dispose of real property that is not held primarily for sale in transactions intended to qualify as like-kind exchanges under the Code. Such like-kind exchanges are intended to result
in the deferral of gain for U.S. federal income tax purposes. The failure of any such transaction to qualify as a like-kind exchange could require us to pay U.S. federal income tax, possibly including the 100% prohibited transaction tax, or deficiency dividends, depending on the facts and circumstances surrounding the particular transaction.
Tax Liabilities and Attributes Inherited in Connection with Acquisitions. From time to time, we or the operating company may acquire other corporations or entities and, in connection with such acquisitions, we may succeed to the historical tax attributes and liabilities of such entities. For example, if we acquire a C corporation and subsequently dispose of its assets within five years of the acquisition, we could be required to pay the built-in gain tax described above under “— General.” In addition, in order to qualify as a REIT, at the end of any taxable year, we must not have any earnings and profits accumulated in a non-REIT year. As a result, if we acquire a C corporation, we must distribute the corporation’s earnings and profits accumulated prior to the acquisition before the end of the taxable year in which we acquire the corporation. We also could be required to pay the acquired entity’s unpaid taxes even though such liabilities arose prior to the time we acquired the entity.
Moreover, we may from time to time acquire other REITs through a merger or acquisition. If any such REIT failed to qualify as a REIT for any of its taxable years, such REIT would be liable for (and we or our subsidiary, as the surviving corporation in the merger or acquisition, would be obligated to pay) regular U.S. federal corporate income tax on its taxable income for such taxable years. In addition, if such REIT was a C corporation at the time of the merger or acquisition, the tax consequences described in the preceding paragraph generally would apply. If such REIT failed to qualify as a REIT for any of its taxable years, but qualified as a REIT at the time of such merger or acquisition, and we acquired such REIT’s assets in a transaction in which our tax basis in the assets of such REIT is determined, in whole or in part, by reference to such REIT’s tax basis in such assets, we generally would be subject to tax on the built-in gain on each asset of such REIT as described above if we were to dispose of the asset in a taxable transaction during the five-year period following such REIT’s requalification as a REIT, subject to certain exceptions. Moreover, even if such REIT qualified as a REIT at all relevant times, we would similarly be liable for other unpaid taxes (if any) of such REIT (such as the 100% tax on gains from any sales treated as “prohibited transactions” as described above under “— Prohibited Transaction Income”).
Furthermore, after our acquisition of another corporation or entity, the asset and income tests will apply to all of our assets, including the assets we acquire from such corporation or entity, and to all of our income, including the income derived from the assets we acquire from such corporation or entity. As a result, the nature of the assets that we acquire from such corporation or entity and the income we derive from those assets may have an effect on our tax status as a REIT.
Foreclosure Property. The foreclosure property rules permit us (by our election) to foreclose or repossess properties without being disqualified as a REIT as a result of receiving income that does not qualify under the gross income tests. However, in such a case, we would be subject to regular U.S. federal corporate income tax on the net non-qualifying income from “foreclosure property,” and the after-tax amount would increase the dividends we would be required to distribute to stockholders. See “— Annual Distribution Requirements.” This corporate tax would not apply to income that qualifies under the REIT 75% income test.
Foreclosure property treatment (other than for qualified health care property) is available for an initial period of three years and may, in certain circumstances, be extended for an additional three years. Foreclosure property treatment for qualified health care property is available for an initial period of two years and may, in certain circumstances, be extended for an additional four years. However, foreclosure property treatment will end on the first day on which we enter into a lease of the applicable property that will give rise to income that does not qualify under the REIT 75% income test, but will not end if the lease will give rise only to qualifying income under such test. Foreclosure property treatment also will end if any construction takes place on the property (other than completion of a building or other improvement that was more than 10% complete before default became imminent).
Failure to Qualify. If we discover a violation of a provision of the Code that would result in our failure to qualify as a REIT, certain specified cure provisions may be available to us. Except with respect to violations of the gross income tests and asset tests (for which the cure provisions are described above), and
provided the violation is due to reasonable cause and not due to willful neglect, these cure provisions generally impose a $50,000 penalty for each violation in lieu of a loss of REIT status. If we fail to satisfy the requirements for taxation as a REIT in any taxable year, and the relief provisions do not apply, we will be required to pay regular U.S. federal corporate income tax, including any applicable alternative minimum tax, on our taxable income. Distributions to stockholders in any year in which we fail to qualify as a REIT will not be deductible by us. As a result, we anticipate that our failure to qualify as a REIT would reduce the cash available for distribution by us to our stockholders. In addition, if we fail to qualify as a REIT, we will not be required to distribute any amounts to our stockholders and all distributions to stockholders will be taxable as regular corporate dividends to the extent of our current and accumulated earnings and profits. In such event, corporate stockholders may be eligible for the dividends-received deduction. In addition, non-corporate stockholders, including individuals, may be eligible for the preferential tax rates on qualified dividend income. Non-corporate stockholders, including individuals, generally may deduct up to 20% of dividends from a REIT, other than capital gain dividends and dividends treated as qualified dividend income, for taxable years beginning before January 1, 2026 for purposes of determining their U.S. federal income tax (but not for purposes of the 3.8% Medicare tax), subject to certain holding period requirements and other limitations. If we fail to qualify as a REIT, such stockholders may not claim this deduction with respect to dividends paid by us. Unless entitled to relief under specific statutory provisions, we would also be ineligible to elect to be treated as a REIT for the four taxable years following the year for which we lose our qualification. It is not possible to state whether in all circumstances we would be entitled to this statutory relief.
Tax Aspects of the Operating Company and the Subsidiary Partnerships and Limited Liability Companies
General. All of our investments are held indirectly through the operating company. In addition, the operating company holds certain of its investments indirectly through subsidiary partnerships and limited liability companies that we believe are and will continue to be treated as partnerships or disregarded entities for U.S. federal income tax purposes. In general, entities that are treated as partnerships or disregarded entities for U.S. federal income tax purposes are “pass-through” entities which are not required to pay U.S. federal income tax. Rather, partners of such partnerships are allocated their shares of the items of income, gain, loss, deduction and credit of the partnership, and are potentially required to pay tax on this income, without regard to whether they receive a distribution from the partnership. We will include in our income our share of these partnership items for purposes of the various gross income tests, the computation of our REIT taxable income, and the REIT distribution requirements. Moreover, for purposes of the asset tests, we will include our pro rata share of assets held by these partnerships based on our capital interests in each such entity. See “— Taxation of Our Company — Ownership of Interests in Partnerships, Limited Liability Companies and Qualified REIT Subsidiaries.” A disregarded entity is not treated as a separate entity for U.S. federal income tax purposes, and all assets, liabilities and items of income, gain, loss, deduction and credit of a disregarded entity are treated as assets, liabilities and items of income, gain, loss, deduction and credit of its parent that is not a disregarded entity for all purposes under the Code, including all REIT qualification tests.
Entity Classification. Our interests in the operating company and the subsidiary partnerships and limited liability companies involve special tax considerations, including the possibility that the IRS might challenge the status of these entities as partnerships or disregarded entities for U.S. federal income tax purposes. For example, an entity that would otherwise be treated as a partnership for U.S. federal income tax purposes may nonetheless be taxable as a corporation if it is a “publicly traded partnership” and certain other requirements are met. A partnership would be treated as a publicly traded partnership if its interests are traded on an established securities market or are readily tradable on a secondary market or a substantial equivalent thereof, within the meaning of applicable Treasury Regulations. We do not anticipate that the operating company or any subsidiary partnership will be treated as a publicly traded partnership that is taxable as a corporation. However, if any such entity were treated as a corporation, it would be required to pay an entity-level tax on its income. In this situation, the character of our assets and items of gross income would change and could prevent us from satisfying the REIT asset tests and possibly the REIT income tests. See “— Taxation of Our Company — Asset Tests” and “— Income Tests.” This, in turn, could prevent us from qualifying as a REIT. See “— Taxation of Our Company — Failure to Qualify” for a discussion of the effect of our failure to meet these tests. In addition, a change in the tax status of the operating company or a subsidiary treated as a partnership or disregarded entity to a corporation might be treated as a taxable event.
If so, we might incur a tax liability without any related cash payment. We believe that the operating company and each of the subsidiary partnerships and limited liability companies are and will continue to be treated as partnerships or disregarded entities for U.S. federal income tax purposes.
Allocations of Items of Income, Gain, Loss and Deduction. A partnership agreement (or, in the case of a limited liability company treated as a partnership for U.S. federal income tax purposes, the limited liability company agreement) generally will determine the allocation of income and loss among partners. These allocations, however, will be disregarded for tax purposes if they do not comply with the provisions of Section 704(b) of the Code and the Treasury Regulations thereunder. Generally, Section 704(b) of the Code and the Treasury Regulations thereunder require that partnership allocations respect the economic arrangement of the partners. If an allocation of partnership income or loss does not comply with the requirements of Section 704(b) of the Code and the Treasury Regulations thereunder, the item subject to the allocation will be reallocated in accordance with the partners’ interests in the partnership. This reallocation will be determined by taking into account all of the facts and circumstances relating to the economic arrangement of the partners with respect to such item. The allocations of taxable income and loss of the operating company and any subsidiaries that are treated as partnerships for U.S. federal income tax purposes are intended to comply with the requirements of Section 704(b) of the Code and the Treasury Regulations thereunder.
Tax Allocations With Respect to the Properties. Under Section 704(c) of the Code, items of income, gain, loss and deduction attributable to appreciated or depreciated property that is contributed to a partnership in exchange for an interest in the partnership must be allocated in a manner so that the contributing partner is charged with the unrealized gain or benefits from the unrealized loss associated with the property at the time of the contribution. The amount of the unrealized gain or unrealized loss generally is equal to the difference between the fair market value or book value and the adjusted tax basis of the contributed property at the time of contribution (this difference is referred to as a book-tax difference), as adjusted from time to time. These allocations are solely for U.S. federal income tax purposes and do not affect the book capital accounts or other economic or legal arrangements among the partners.
Some of the partnerships in which we own an interest were formed by way of contributions of appreciated property. In addition, our operating company may, from time to time, acquire interests in property in exchange for interests in our operating company. The relevant partnership and/or limited liability company agreements of our operating partnership and our subsidiary partnerships require that allocations be made in a manner consistent with Section 704(c) of the Code. Section 704(c) of the Code provides partnerships with a choice of several methods of accounting for book-tax differences. Depending on the method we have agreed to or choose in connection with any particular contribution, the carryover basis of each of the contributed interests in the properties in the hands of our operating partnership or subsidiary partnerships could cause us to be allocated less depreciation or more gain on sale with respect to a contributed property than the amounts that would have been allocated to us if we had instead acquired the contributed property with an initial tax basis equal to its fair market value. Such allocations might adversely affect our ability to comply with the REIT distribution requirements. See “— Taxation of Our Company — Requirements for Qualification as a REIT” and “— Annual Distribution Requirements.”
Any property acquired by a subsidiary partnership in a taxable transaction will initially have a tax basis equal to its fair market value, and Section 704(c) of the Code generally will not apply.
Partnership Audit Rules. Under current tax law, and subject to certain exceptions, any audit adjustment to items of income, gain, loss, deduction, or credit of a partnership (and any partner’s distributive share thereof) is determined, and taxes, interest, or penalties attributable thereto are assessed and collected, at the partnership level. It is possible that these rules could result in partnerships in which we directly or indirectly invest, including the operating company, being required to pay additional taxes, interest and penalties as a result of an audit adjustment, and we, as a direct or indirect partner of these partnerships, could be required to bear the economic burden of those taxes, interest, and penalties even though we, as a REIT, may not otherwise have been required to pay additional corporate-level taxes as a result of the related audit adjustment. Investors are urged to consult their tax advisors with respect to these rules and their potential impact on their investment in our capital stock.
Material U.S. Federal Income Tax Consequences to Holders of Our Capital Stock and the Operating Company’s Debt Securities
The following discussion is a summary of certain material U.S. federal income tax consequences to you of purchasing, owning and disposing of our capital stock or the operating company’s debt securities. This discussion is limited to holders who hold our capital stock or the operating company’s debt securities as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a holder’s particular circumstances, including the alternative minimum tax. In addition, except where specifically noted, it does not address consequences relevant to holders subject to special rules, including, without limitation:
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U.S. expatriates and former citizens or long-term residents of the United States;
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U.S. holders (as defined below) whose functional currency is not the U.S. dollar;
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persons holding our capital stock or the operating company’s debt securities as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;
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banks, insurance companies, and other financial institutions;
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REITs or regulated investment companies;
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brokers, dealers or traders in securities;
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“controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;
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S corporations, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);
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tax-exempt organizations or governmental organizations;
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persons subject to special tax accounting rules as a result of any item of gross income with respect to our capital stock or the operating company’s debt securities being taken into account in an applicable financial statement;
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persons deemed to sell our capital stock or the operating company’s debt securities under the constructive sale provisions of the Code; and
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persons who hold or receive our capital stock pursuant to the exercise of any employee stock option or otherwise as compensation.
THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS TAX ADVICE. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR CAPITAL STOCK OR THE OPERATING COMPANY’S DEBT SECURITIES ARISING UNDER OTHER U.S. FEDERAL TAX LAWS (INCLUDING ESTATE AND GIFT TAX LAWS), UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.
For purposes of this discussion, a “U.S. holder” is a beneficial owner of our capital stock or the operating company’s debt securities that, for U.S. federal income tax purposes, is or is treated as:
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an individual who is a citizen or resident of the United States;
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a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
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a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) or (2) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.
For purposes of this discussion, a “non-U.S. holder” is any beneficial owner of our capital stock or the operating company’s debt securities that is neither a U.S. holder nor an entity treated as a partnership for U.S. federal income tax purposes.
If an entity treated as a partnership for U.S. federal income tax purposes holds our capital stock or the operating company’s debt securities, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding our capital stock or the operating company’s debt securities and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.
Taxation of Taxable U.S. Holders of Our Capital Stock
Distributions Generally. Distributions out of our current or accumulated earnings and profits will be treated as dividends and, other than with respect to capital gain dividends and certain amounts which have previously been subject to corporate level tax, as discussed below, will be taxable to our taxable U.S. holders as ordinary income when actually or constructively received. See “— Tax Rates” below. As long as we qualify as a REIT, these distributions will not be eligible for the dividends-received deduction in the case of U.S. holders that are corporations or, except to the extent described in “— Tax Rates” below, the preferential rates on qualified dividend income applicable to non-corporate U.S. holders, including individuals. For purposes of determining whether distributions to holders of our capital stock are out of our current or accumulated earnings and profits, our earnings and profits will be allocated first to our outstanding preferred stock, if any, and then to our outstanding common stock.
To the extent that we make distributions on our capital stock in excess of our current and accumulated earnings and profits allocable to such stock, these distributions will be treated first as a tax-free return of capital to a U.S. holder to the extent of the U.S. holder’s adjusted tax basis in such shares of stock. This treatment will reduce the U.S. holder’s adjusted tax basis in such shares of stock by such amount, but not below zero. Distributions in excess of our current and accumulated earnings and profits and in excess of a U.S. holder’s adjusted tax basis in its shares will be taxable as capital gain. Such gain will be taxable as long-term capital gain if the shares have been held for more than one year. Dividends we declare in October, November, or December of any year and which are payable to a holder of record on a specified date in any of these months will be treated as both paid by us and received by the holder on December 31 of that year, provided we actually pay the dividend on or before January 31 of the following year. U.S. holders may not include in their own income tax returns any of our net operating losses or capital losses.
U.S. holders that receive taxable stock distributions, including distributions partially payable in our capital stock and partially payable in cash, would be required to include the full amount of the distribution (i.e., the cash and the stock portion) as a dividend (subject to limited exceptions) to the extent of our current and accumulated earnings and profits for U.S. federal income tax purposes, as described above. The amount of any distribution payable in our capital stock generally is equal to the amount of cash that could have been received instead of the capital stock. Depending on the circumstances of a U.S. holder, the tax on the distribution may exceed the amount of the distribution received in cash, in which case such U.S. holder would have to pay the tax using cash from other sources. If a U.S. holder sells the capital stock it received in connection with a taxable stock distribution in order to pay this tax and the proceeds of such sale are less than the amount required to be included in income with respect to the stock portion of the distribution, such U.S. holder could have a capital loss with respect to the stock sale that could not be used to offset such income. A U.S. holder that receives capital stock pursuant to such distribution generally has a tax basis in such capital stock equal to the amount of cash that could have been received instead of such capital stock as described above, and has a holding period in such capital stock that begins on the day immediately following the payment date for the distribution.
Capital Gain Dividends. Dividends that we properly designate as capital gain dividends will generally be taxable to our taxable U.S. holders as a gain from the sale or disposition of a capital asset held for more than one year, to the extent that such gain does not exceed our actual net capital gain for the taxable year and may not exceed our dividends paid for the taxable year, including dividends paid the following year that are treated as paid in the current year. U.S. holders that are corporations may, however, be required to treat up to 20% of certain capital gain dividends as ordinary income. If we properly designate any portion of a
dividend as a capital gain dividend, then, except as otherwise required by law, we presently intend to allocate a portion of the total capital gain dividends paid or made available to holders of all classes of our capital stock for the year to the holders of each class of our capital stock in proportion to the amount that our total dividends, as determined for U.S. federal income tax purposes, paid or made available to the holders of each such class of our capital stock for the year bears to the total dividends, as determined for U.S. federal income tax purposes, paid or made available to holders of all classes of our capital stock for the year. In addition, except as otherwise required by law, we will make a similar allocation with respect to any undistributed long-term capital gains which are to be included in our stockholders’ long-term capital gains, based on the allocation of the capital gain amount which would have resulted if those undistributed long-term capital gains had been distributed as “capital gain dividends” by us to our stockholders.
Retention of Net Capital Gains. We may elect to retain, rather than distribute as a capital gain dividend, all or a portion of our net capital gains. If we make this election, we would pay tax on our retained net capital gains. In addition, to the extent we so elect, our earnings and profits (determined for U.S. federal income tax purposes) would be adjusted accordingly, and a U.S. holder generally would:
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include its pro rata share of our undistributed capital gain in computing its long-term capital gains in its U.S. federal income tax return for its taxable year in which the last day of our taxable year falls, subject to certain limitations as to the amount that is includable;
•
be deemed to have paid its share of the capital gains tax imposed on us on the designated amounts included in the U.S. holder’s income as long-term capital gain;
•
receive a credit or refund for the amount of tax deemed paid by it;
•
increase the adjusted tax basis of its capital stock by the difference between the amount of includable gains and the tax deemed to have been paid by it; and
•
in the case of a U.S. holder that is a corporation, appropriately adjust its earnings and profits for the retained capital gains in accordance with Treasury Regulations to be promulgated by the IRS.
Passive Activity Losses and Investment Interest Limitations. Distributions we make and gain arising from the sale or exchange of our capital stock by a U.S. holder will not be treated as passive activity income. As a result, U.S. holders generally will not be able to apply any “passive losses” against this income or gain. A U.S. holder generally may elect to treat capital gain dividends, capital gains from the disposition of our capital stock and income designated as qualified dividend income, as described in “— Tax Rates” below, as investment income for purposes of computing the investment interest limitation, but in such case, the holder will be taxed at ordinary income rates on such amount. Other distributions made by us, to the extent they do not constitute a return of capital, generally will be treated as investment income for purposes of computing the investment interest limitation.
Dispositions of Our Capital Stock. Except as described below under “— Taxation of Taxable U.S. Holders of Our Capital Stock — Redemption or Repurchase by Us,” if a U.S. holder sells or disposes of shares of our capital stock, it will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference between the amount of cash and the fair market value of any property received on the sale or other disposition and the holder’s adjusted tax basis in the shares. This gain or loss, except as provided below, will be long-term capital gain or loss if the holder has held such capital stock for more than one year. However, if a U.S. holder recognizes a loss upon the sale or other disposition of capital stock that it has held for six months or less, after applying certain holding period rules, the loss recognized will be treated as a long-term capital loss to the extent the U.S. holder received distributions from us which were required to be treated as long-term capital gains. The deductibility of capital losses is subject to limitations.
Redemption or Repurchase by Us. A redemption or repurchase of shares of our capital stock will be treated under Section 302 of the Code as a distribution (and taxable as a dividend to the extent of our current and accumulated earnings and profits as described above under “— Distributions Generally”) unless the redemption or repurchase satisfies one of the tests set forth in Section 302(b) of the Code and is therefore treated as a sale or exchange of the redeemed or repurchased shares. The redemption or repurchase generally will be treated as a sale or exchange if it:
•
is “substantially disproportionate” with respect to the U.S. holder,
•
results in a “complete redemption” of the U.S. holder’s stock interest in us, or
•
is “not essentially equivalent to a dividend” with respect to the U.S. holder,
all within the meaning of Section 302(b) of the Code.
In determining whether any of these tests has been met, shares of our capital stock, including common stock and other equity interests in us, considered to be owned by the U.S. holder by reason of certain constructive ownership rules set forth in the Code, as well as shares of our capital stock actually owned by the U.S. holder, generally must be taken into account. Because the determination as to whether any of the alternative tests of Section 302(b) of the Code will be satisfied with respect to the U.S. holder depends upon the facts and circumstances at the time that the determination must be made, U.S. holders are advised to consult their tax advisors to determine such tax treatment.
If a redemption or repurchase of shares of our capital stock is treated as a distribution, the amount of the distribution will be measured by the amount of cash and the fair market value of any property received. See “— Distributions Generally.” A U.S. holder’s adjusted tax basis in the redeemed or repurchased shares generally will be transferred to the holder’s remaining shares of our capital stock, if any. If a U.S. holder owns no other shares of our capital stock, under certain circumstances, such basis may be transferred to a related person or it may be lost entirely. Prospective investors should consult their tax advisors regarding the U.S. federal income tax consequences of a redemption or repurchase of our capital stock.
If a redemption or repurchase of shares of our capital stock is not treated as a distribution, it will be treated as a taxable sale or exchange in the manner described under “— Dispositions of Our Capital Stock.”
Tax Rates. The maximum tax rate for non-corporate taxpayers for (1) long-term capital gains, including certain “capital gain dividends,” generally is 20% (although depending on the characteristics of the assets which produced these gains and on designations which we may make, certain capital gain dividends may be taxed at a 25% rate) and (2) “qualified dividend income” generally is 20%. In general, dividends payable by REITs are not eligible for the reduced tax rate on qualified dividend income, except to the extent that certain holding period requirements have been met and the REIT’s dividends are attributable to dividends received from taxable corporations (such as its taxable REIT subsidiaries) or to income that was subject to tax at the corporate/REIT level (for example, if the REIT distributed taxable income that it retained and paid tax on in the prior taxable year). Capital gain dividends will only be eligible for the rates described above to the extent that they are properly designated by the REIT as “capital gain dividends.” U.S. holders that are corporations may be required to treat up to 20% of some capital gain dividends as ordinary income. In addition, non-corporate U.S. holders, including individuals, generally may deduct up to 20% of dividends from a REIT, other than capital gain dividends and dividends treated as qualified dividend income, for taxable years beginning before January 1, 2026 for purposes of determining their U.S. federal income tax (but not for purposes of the 3.8% Medicare tax), subject to certain holding period requirements and other limitations.
Taxation of Tax-Exempt Holders of Our Capital Stock
Dividend income from us and gain arising upon a sale of shares of our capital stock generally should not be unrelated business taxable income (“UBTI”) to a tax-exempt holder, except as described below. This income or gain will be UBTI, however, to the extent a tax-exempt holder holds its shares as “debt-financed property” within the meaning of the Code. Generally, “debt-financed property” is property the acquisition or holding of which was financed through a borrowing by the tax-exempt holder.
For tax-exempt holders that are social clubs, voluntary employee benefit associations or supplemental unemployment benefit trusts exempt from U.S. federal income taxation under Sections 501(c)(7), (c)(9) or (c)(17) of the Code, respectively, income from an investment in our shares will constitute UBTI unless the organization is able to properly claim a deduction for amounts set aside or placed in reserve for specific purposes so as to offset the income generated by its investment in our shares. These prospective investors should consult their tax advisors concerning these “set aside” and reserve requirements.
Notwithstanding the above, however, a portion of the dividends paid by a “pension-held REIT” may be treated as UBTI as to certain trusts that hold more than 10%, by value, of the interests in the REIT. A
REIT will not be a “pension-held REIT” if it is able to satisfy the “not closely held” requirement without relying on the “look-through” exception with respect to certain trusts or if such REIT is not “predominantly held” by “qualified trusts.” As a result of restrictions on ownership and transfer of our stock contained in our charter, we do not expect to be classified as a “pension-held REIT,” and as a result, the tax treatment described above should be inapplicable to our holders. However, because our common stock is (and, we anticipate, will continue to be) publicly traded, we cannot guarantee that this will always be the case.
Taxation of Non-U.S. Holders of Our Capital Stock
The following discussion addresses the rules governing U.S. federal income taxation of the purchase, ownership and disposition of our capital stock by non-U.S. holders. These rules are complex, and no attempt is made herein to provide more than a brief summary of such rules. Accordingly, the discussion does not address all aspects of U.S. federal income taxation and does not address other federal, state, local or non-U.S. tax consequences that may be relevant to a non-U.S. holder in light of its particular circumstances. We urge non-U.S. holders to consult their tax advisors to determine the impact of U.S. federal, state, local and non-U.S. income and other tax laws and any applicable tax treaty on the purchase, ownership and disposition of shares of our capital stock, including any reporting requirements.
Distributions Generally. Distributions (including any taxable stock distributions) that are neither attributable to gains from sales or exchanges by us of United States real property interests (“USRPIs”) nor designated by us as capital gain dividends (except as described below) will be treated as dividends of ordinary income to the extent that they are made out of our current or accumulated earnings and profits. Such distributions ordinarily will be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty, unless the distributions are treated as effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such dividends are attributable). Under certain treaties, however, lower withholding rates generally applicable to dividends do not apply to dividends from a REIT. Certain certification and disclosure requirements must be satisfied for a non-U.S. holder to be exempt from withholding under the effectively connected income exemption. Dividends that are treated as effectively connected with a non-U.S. holder’s conduct of a U.S. trade or business generally will not be subject to withholding but will be subject to U.S. federal income tax on a net basis at the regular rates, in the same manner as dividends paid to U.S. holders are subject to U.S. federal income tax. Any such dividends received by a non-U.S. holder that is a corporation may also be subject to an additional branch profits tax at a 30% rate (applicable after deducting U.S. federal income taxes paid on such effectively connected income) or such lower rate as may be specified by an applicable income tax treaty.
Except as otherwise provided below, we expect to withhold U.S. federal income tax at the rate of 30% on any distributions made to a non-U.S. holder unless:
(1)
a lower treaty rate applies and the non-U.S. holder furnishes an IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) evidencing eligibility for that reduced treaty rate; or
(2)
the non-U.S. holder furnishes an IRS Form W-8ECI (or other applicable documentation) claiming that the distribution is income effectively connected with the non-U.S. holder’s trade or business.
Distributions in excess of our current and accumulated earnings and profits will not be taxable to a non-U.S. holder to the extent that such distributions do not exceed the adjusted tax basis of the holder’s capital stock, but rather will reduce the adjusted tax basis of such stock. To the extent that such distributions exceed the non-U.S. holder’s adjusted tax basis in such capital stock, they generally will give rise to gain from the sale or exchange of such stock, the tax treatment of which is described below. However, such excess distributions may be treated as dividend income for certain non-U.S. holders. For withholding purposes, we expect to treat all distributions as made out of our current or accumulated earnings and profits. However, amounts withheld may be refundable if it is subsequently determined that the distribution was, in fact, in excess of our current and accumulated earnings and profits, provided that certain conditions are met.
Capital Gain Dividends and Distributions Attributable to a Sale or Exchange of United States Real Property Interests. Distributions to a non-U.S. holder that we properly designate as capital gain dividends, other than those arising from the disposition of a USRPI, generally should not be subject to U.S. federal income taxation, unless:
(1)
the investment in our capital stock is treated as effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such dividends are attributable), in which case the non-U.S. holder will be subject to the same treatment as a U.S. holder would be with respect to such gain, except that a non-U.S. holder that is a corporation may also be subject to a branch profits tax of up to 30%, as discussed above; or
(2)
the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met, in which case the non-U.S. holder will be subject to U.S. federal income tax at a rate of 30% on the non-U.S. holder’s capital gains (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of such non-U.S. holder (even though the individual is not considered a resident of the United States), provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses.
Pursuant to the Foreign Investment in Real Property Tax Act, which is referred to as “FIRPTA,” distributions to a non-U.S. holder that are attributable to gain from sales or exchanges by us of USRPIs, whether or not designated as capital gain dividends, will cause the non-U.S. holder to be treated as recognizing such gain as income effectively connected with a U.S. trade or business. Non-U.S. holders generally would be taxed at the regular rates applicable to U.S. holders, subject to any applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals. We also will be required to withhold and to remit to the IRS 21% of any distribution to non-U.S. holders attributable to gain from sales or exchanges by us of USRPIs. Distributions subject to FIRPTA may also be subject to a 30% branch profits tax in the hands of a non-U.S. holder that is a corporation. The amount withheld is creditable against the non-U.S. holder’s U.S. federal income tax liability. However, any distribution with respect to any class of stock that is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market located in the United States is not subject to FIRPTA, and therefore, not subject to the 21% U.S. withholding tax described above, if the non-U.S. holder did not own more than 10% of such class of stock at any time during the one-year period ending on the date of the distribution. Instead, such distributions generally will be treated as ordinary dividend distributions and subject to withholding in the manner described above with respect to ordinary dividends. In addition, distributions to certain non-U.S. publicly traded shareholders that meet certain record-keeping and other requirements (“qualified shareholders”) are exempt from FIRPTA, except to the extent owners of such qualified shareholders that are not also qualified shareholders own, actually or constructively, more than 10% of our capital stock. Furthermore, distributions to certain “qualified foreign pension funds” or entities all of the interests of which are held by such “qualified foreign pension funds” are exempt from FIRPTA. Non-U.S. holders should consult their tax advisors regarding the application of these rules.
Retention of Net Capital Gains. Although the law is not clear on the matter, it appears that amounts we designate as retained net capital gains in respect of our capital stock should be treated with respect to non-U.S. holders as actual distributions of capital gain dividends. Under this approach, the non-U.S. holders may be able to offset as a credit against their U.S. federal income tax liability their proportionate share of the tax paid by us on such retained net capital gains and to receive from the IRS a refund to the extent their proportionate share of such tax paid by us exceeds their actual U.S. federal income tax liability. If we were to designate any portion of our net capital gain as retained net capital gain, non-U.S. holders should consult their tax advisors regarding the taxation of such retained net capital gain.
Sale of Our Capital Stock. Except as described below under “— Redemption or Repurchase by Us,” gain realized by a non-U.S. holder upon the sale, exchange or other taxable disposition of our capital stock generally will not be subject to U.S. federal income tax unless such stock constitutes a USRPI. In general, stock of a domestic corporation that constitutes a “United States real property holding corporation,” or USRPHC, will constitute a USRPI. We believe that we are a USRPHC. Our capital stock will not, however, constitute a USRPI so long as we are a “domestically controlled qualified investment entity.” A “domestically controlled qualified investment entity” includes a REIT in which at all times during a five-year testing period less than 50% in value of its stock is held directly or indirectly by non-United States persons, subject to certain ownership rules. For purposes of determining whether a REIT is a “domestically controlled
qualified investment entity,” ownership by non-United States persons generally will be determined by looking through certain pass-through entities and U.S. corporations, including non-public REITs and certain non-public foreign-controlled domestic C corporations, and treating a public qualified investment entity as a non-United States person unless such entity is a “domestically controlled qualified investment entity.” Notwithstanding the foregoing ownership rules, a person who at all applicable times holds less than 5% of a class of a REIT’s stock that is “regularly traded” on an established securities market in the United States is treated as a United States person unless the REIT has actual knowledge that such person is not a United States person or is a foreign-controlled person. We believe, but cannot guarantee, that we are a “domestically controlled qualified investment entity.” Because our common stock is (and, we anticipate, will continue to be) publicly traded, no assurance can be given that we will continue to be a “domestically controlled qualified investment entity.”
Even if we do not qualify as a “domestically controlled qualified investment entity” at the time a non-U.S. holder sells our capital stock, gain realized from the sale or other taxable disposition by a non-U.S. holder of such capital stock would not be subject to U.S. federal income tax under FIRPTA as a sale of a USRPI if:
(1)
such class of stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market such as the NYSE; and
(2)
such non-U.S. holder owned, actually and constructively, 10% or less of such class of stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the non-U.S. holder’s holding period.
In addition, dispositions of our capital stock by qualified shareholders are exempt from FIRPTA, except to the extent owners of such qualified shareholders that are not also qualified shareholders own, actually or constructively, more than 10% of our capital stock. Furthermore, dispositions of our capital stock by certain “qualified foreign pension funds” or entities all of the interests of which are held by such “qualified foreign pension funds” are exempt from FIRPTA. Non-U.S. holders should consult their tax advisors regarding the application of these rules.
Notwithstanding the foregoing, gain from the sale, exchange or other taxable disposition of our capital stock not otherwise subject to FIRPTA will be taxable to a non-U.S. holder if either (a) the investment in our capital stock is treated as effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such gain is attributable), in which case the non-U.S. holder will be subject to the same treatment as U.S. holders with respect to such gain, except that a non-U.S. holder that is a corporation may also be subject to the 30% branch profits tax (or such lower rate as may be specified by an applicable income tax treaty) on such gain, as adjusted for certain items, or (b) the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met, in which case the non-U.S. holder will be subject to a 30% tax on the non-U.S. holder’s capital gains (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of the non-U.S. holder (even though the individual is not considered a resident of the United States), provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses. In addition, even if we are a domestically controlled qualified investment entity, upon disposition of our capital stock, a non-U.S. holder may be treated as recognizing gain from the sale or other taxable disposition of a USRPI if the non-U.S. holder (1) disposes of such stock within a 30-day period preceding the ex-dividend date of a distribution, any portion of which, but for the disposition, would have been treated as gain from the sale or exchange of a USRPI and (2) acquires, or enters into a contract or option to acquire, or is deemed to acquire, other shares of that stock during the 61-day period beginning with the first day of the 30-day period described in clause (1), unless such class of stock is “regularly traded” and the non-U.S. holder did not own more than 10% of such class of stock at any time during the one-year period ending on the date of the distribution described in clause (1).
If gain on the sale, exchange or other taxable disposition of our capital stock were subject to taxation under FIRPTA, the non-U.S. holder would be required to file a U.S. federal income tax return and would be subject to regular U.S. federal income tax with respect to such gain in the same manner as a taxable U.S.
holder (subject to any applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals). In addition, if the sale, exchange or other taxable disposition of our capital stock were subject to taxation under FIRPTA, and if shares of the applicable class of our capital stock were not “regularly traded” on an established securities market, the purchaser of such capital stock generally would be required to withhold and remit to the IRS 15% of the purchase price.
Redemption or Repurchase by Us. A redemption or repurchase of shares of our capital stock will be treated under Section 302 of the Code as a distribution (and taxable as a dividend to the extent of our current and accumulated earnings and profits) unless the redemption or repurchase satisfies one of the tests set forth in Section 302(b) of the Code and is therefore treated as a sale or exchange of the redeemed or repurchased shares. See “— Taxation of Taxable U.S. Holders of Our Capital Stock — Redemption or Repurchase by Us.” Qualified shareholders and their owners may be subject to different rules, and should consult their tax advisors regarding the application of such rules. If the redemption or repurchase of shares is treated as a distribution, the amount of the distribution will be measured by the amount of cash and the fair market value of any property received. See “— Taxation of Non-U.S. Holders of Our Capital Stock — Distributions Generally” above. If the redemption or repurchase of shares is not treated as a distribution, it will be treated as a taxable sale or exchange in the manner described above under “— Sale of Our Capital Stock.”
Taxation of Holders of the Operating Company’s Debt Securities
The following summary describes certain material U.S. federal income tax consequences of purchasing, owning and disposing of debt securities issued by the operating company. This discussion assumes the debt securities will be issued with less than a statutory de minimis amount of original issue discount for U.S. federal income tax purposes. In addition, this discussion is limited to persons purchasing the debt securities for cash at original issue and at their original “issue price” within the meaning of Section 1273 of the Code (i.e., the first price at which a substantial amount of the debt securities is sold to the public for cash).
Tax Consequences Applicable to U.S. Holders
Payments of Interest. Interest on a debt security generally will be taxable to a U.S. holder as ordinary income at the time such interest is received or accrued, in accordance with such U.S. holder’s method of accounting for U.S. federal income tax purposes.
Sale or Other Taxable Disposition. A U.S. holder will recognize gain or loss on the sale, exchange, redemption, retirement or other taxable disposition of a debt security. The amount of such gain or loss generally will be equal to the difference between the amount received for the debt security in cash or other property valued at fair market value (less amounts attributable to any accrued but unpaid interest, which will be taxable as interest to the extent not previously included in income) and the U.S. holder’s adjusted tax basis in the debt security. A U.S. holder’s adjusted tax basis in a debt security generally will be equal to the amount the U.S. holder paid for the debt security. Any gain or loss generally will be capital gain or loss, and will be long-term capital gain or loss if the U.S. holder has held the debt security for more than one year at the time of such sale or other taxable disposition. Otherwise, such gain or loss will be short-term capital gain or loss. Long-term capital gains recognized by certain non-corporate U.S. holders, including individuals, generally will be taxable at reduced rates. The deductibility of capital losses is subject to limitations.
Tax Consequences Applicable to Non-U.S. Holders
Payments of Interest. Interest paid on a debt security to a non-U.S. holder that is not effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States generally will not be subject to U.S. federal income tax or withholding, provided that:
•
the non-U.S. holder does not, actually or constructively, own 10% or more of the operating company’s capital or profits;
•
the non-U.S. holder is not a controlled foreign corporation related to the operating company through actual or constructive stock ownership; and
•
either (1) the non-U.S. holder certifies in a statement provided to the applicable withholding agent under penalties of perjury that it is not a United States person and provides its name and address; (2) a securities clearing organization, bank or other financial institution that holds customers’ securities in the ordinary course of its trade or business and holds the debt security on behalf of the non-U.S. holder certifies to the applicable withholding agent under penalties of perjury that it, or the financial institution between it and the non-U.S. holder, has received from the non-U.S. holder a statement under penalties of perjury that such holder is not a United States person and provides the applicable withholding agent with a copy of such statement; or (3) the non-U.S. holder holds its debt security directly through a “qualified intermediary” (within the meaning of the applicable Treasury Regulations) and certain conditions are satisfied.
If a non-U.S. holder does not satisfy the requirements above, such non-U.S. holder will be subject to withholding tax of 30%, subject to a reduction in or an exemption from withholding on such interest as a result of an applicable tax treaty. To claim such entitlement, the non-U.S. holder must provide the applicable withholding agent with a properly executed IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) claiming a reduction in or exemption from withholding tax under the benefit of an income tax treaty between the United States and the country in which the non-U.S. holder resides or is established.
If interest paid to a non-U.S. holder is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such interest is attributable), the non-U.S. holder will be exempt from the U.S. federal withholding tax described above. To claim the exemption, the non-U.S. holder must furnish to the applicable withholding agent a valid IRS Form W-8ECI, certifying that interest paid on a debt security is not subject to withholding tax because it is effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States.
Any such effectively connected interest generally will be subject to U.S. federal income tax at the regular rates. A non-U.S. holder that is a corporation may also be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected interest, as adjusted for certain items.
The certifications described above must be provided to the applicable withholding agent prior to the payment of interest and must be updated periodically. Non-U.S. holders that do not timely provide the applicable withholding agent with the required certification, but that qualify for a reduced rate under an applicable income tax treaty, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
Sale or Other Taxable Disposition. A non-U.S. holder will not be subject to U.S. federal income tax on any gain realized upon the sale, exchange, redemption, retirement or other taxable disposition of a debt security (such amount excludes any amount allocable to accrued and unpaid interest, which generally will be treated as interest and may be subject to the rules discussed above in “— Taxation of Holders of The Operating Company’s Debt Securities — Tax Consequences Applicable to Non-U.S. Holders — Payments of Interest”) unless:
•
the gain is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such gain is attributable); or
•
the non-U.S. holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met.
Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular rates. A non-U.S. holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.
A non-U.S. holder described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on gain realized upon the
sale or other taxable disposition of a debt security, which may be offset by U.S. source capital losses of the non-U.S. holder (even though the individual is not considered a resident of the United States), provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses.
Non-U.S. holders should consult their tax advisors regarding any applicable income tax treaties that may provide for different rules.
Information Reporting and Backup Withholding
U.S. Holders. A U.S. holder may be subject to information reporting and backup withholding when such holder receives payments on our capital stock or the operating company’s debt securities or proceeds from the sale or other taxable disposition of such stock or debt securities (including a redemption or retirement of a debt security). Certain U.S. holders are exempt from backup withholding, including corporations and certain tax-exempt organizations. A U.S. holder will be subject to backup withholding if such holder is not otherwise exempt and:
•
the holder fails to furnish the holder’s taxpayer identification number, which for an individual is ordinarily his or her social security number;
•
the holder furnishes an incorrect taxpayer identification number;
•
the applicable withholding agent is notified by the IRS that the holder previously failed to properly report payments of interest or dividends; or
•
the holder fails to certify under penalties of perjury that the holder has furnished a correct taxpayer identification number and that the IRS has not notified the holder that the holder is subject to backup withholding.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a U.S. holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS. U.S. holders should consult their tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.
Non-U.S. Holders. Payments of dividends on our capital stock or interest on the operating company’s debt securities generally will not be subject to backup withholding, provided the applicable withholding agent does not have actual knowledge or reason to know the holder is a United States person and the holder either certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any distributions on our capital stock or interest on the operating company’s debt securities paid to the non-U.S. holder, regardless of whether such distributions constitute a dividend or whether any tax was actually withheld. In addition, proceeds of the sale or other taxable disposition of such stock or debt securities (including a retirement or redemption of a debt security) within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting if the applicable withholding agent receives the certification described above and does not have actual knowledge or reason to know that such holder is a United States person, or the holder otherwise establishes an exemption. Proceeds of a disposition of such stock or debt securities conducted through a non-U.S. office of a non-U.S. broker generally will not be subject to backup withholding or information reporting.
Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the non-U.S. holder resides or is established.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a non-U.S. holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.
Medicare Contribution Tax on Unearned Income
Certain U.S. holders that are individuals, estates or trusts are required to pay an additional 3.8% tax on, among other things, dividends on stock, interest on debt obligations and capital gains from the sale or
other disposition of stock or debt obligations, subject to certain limitations. U.S. holders should consult their tax advisors regarding the effect, if any, of these rules on their ownership and disposition of our capital stock or the operating company’s debt securities.
Additional Withholding Tax on Payments Made to Foreign Accounts
Withholding taxes may be imposed under Sections 1471 to 1474 of the Code (such sections commonly referred to as the Foreign Account Tax Compliance Act (“FATCA”)) on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on our capital stock, interest on the operating company’s debt securities, or (subject to the proposed Treasury Regulations discussed below) gross proceeds from the sale or other disposition of our capital stock or the operating company’s debt securities, in each case paid to a “foreign financial institution” or a “non-financial foreign entity” (each as defined in the Code), unless (1) the foreign financial institution undertakes certain diligence and reporting obligations, (2) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner, or (3) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in clause (1) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.
Under the applicable Treasury Regulations and administrative guidance, withholding under FATCA generally applies to payments of dividends on our capital stock or interest on the operating company’s debt securities. While withholding under FATCA would have applied also to payments of gross proceeds from the sale or other disposition of stock or debt securities on or after January 1, 2019, proposed Treasury Regulations eliminate FATCA withholding on payments of gross proceeds entirely. Taxpayers generally may rely on these proposed Treasury Regulations until final Treasury Regulations are issued. Because we may not know the extent to which a distribution is a dividend for U.S. federal income tax purposes at the time it is made, for purposes of these withholding rules we may treat the entire distribution as a dividend.
Prospective investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment in our capital stock or the operating company’s debt securities.
Other Tax Consequences State, local and non-U.S. income tax laws may differ substantially from the corresponding U.S. federal income tax laws, and this discussion does not purport to describe any aspect of the tax laws of any state, local or non-U.S. jurisdiction, or any U.S. federal tax other than income tax. You should consult your tax advisors regarding the effect of state, local and non-U.S. tax laws with respect to our tax treatment as a REIT and on an investment in our capital stock or the operating company’s debt securities.
PLAN OF DISTRIBUTION
We, or the selling securityholders, may sell the securities offered by this prospectus from time to time in one or more transactions, including without limitation:
•
directly to one or more purchasers;
•
through agents;
•
to or through underwriters, brokers or dealers; or
•
through a combination of any of these methods.
A prospectus supplement with respect to each offering of securities will state the terms of the offering of the securities, including:
•
the method of distribution including the name or names of any underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any;
•
the public offering price or purchase price of the securities and the net proceeds to be received by us from the sale;
•
any delayed delivery arrangements;
•
any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
•
any discounts or concessions allowed or reallowed or paid to dealers; and
•
any securities exchange or markets on which the securities may be listed.
The offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may be effected from time to time in one or more transactions, including privately negotiated transactions, either:
•
at a fixed price or prices, which may be changed;
•
at market prices prevailing at the time of sale;
•
in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise;
•
at prices related to the prevailing market prices; or
•
at negotiated prices.
General
Any public offering price and any discounts, commissions, concessions or other items constituting compensation allowed or reallowed or paid to underwriters, dealers, agents or remarketing firms may be changed from time to time. Underwriters, dealers, agents and remarketing firms that participate in the distribution of the offered securities may be “underwriters” as defined in the Securities Act. Any discounts or commissions they receive from us and any profits they receive on the resale of the offered securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify any underwriters, dealers, agents or remarketing firms and describe their commissions, fees or discounts in the applicable prospectus supplement or free writing prospectus, as the case may be.
Underwriters, Agents and Remarketing Firms
If underwriters are used in a sale, they will acquire the offered securities for their own account. The underwriters may resell the offered securities in one or more transactions, including negotiated transactions. These sales may be made at a fixed public offering price or prices, which may be changed, at market prices prevailing at the time of the sale, at prices related to such prevailing market price or at negotiated prices. We may offer the securities to the public through an underwriting syndicate or through a single underwriter.
The underwriters in any particular offering will be stated in the applicable prospectus supplement or free writing prospectus, as the case may be.
Unless otherwise specified in connection with any particular offering of securities, the obligations of the underwriters to purchase the offered securities will be subject to certain conditions contained in an underwriting agreement that we will enter into with the underwriters at the time of the sale to them. The underwriters will be obligated to purchase all of the securities offered if any of the securities are purchased, unless otherwise specified in connection with any particular offering of securities. Any initial offering price and any discounts or concessions allowed, reallowed or paid to dealers may be changed from time to time.
We may designate agents to sell the offered securities. Unless otherwise specified in connection with any particular offering of securities, the agents will agree to use their best efforts to solicit purchases for the period of their appointment. We may also sell the offered securities to one or more remarketing firms, acting as principals for their own accounts or as agents for us. These firms will remarket the offered securities upon purchasing them in accordance with a redemption or repayment pursuant to the terms of the offered securities. A prospectus supplement or free writing prospectus, as the case may be, will identify any remarketing firm and will describe the terms of its agreement, if any, with us and its compensation.
In connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions in these outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under these arrangements to close out any related open borrowings of securities.
Dealers
We may sell the offered securities to dealers as principals. We may negotiate and pay dealers’ commissions, discounts or concessions for their services. Dealers may then resell such securities to the public either at varying prices to be determined by the dealers or at a fixed offering price agreed to with us at the time of resale. Dealers engaged by us may allow other dealers to participate in resales.
Direct Sales
We may choose to sell the offered securities directly. In this case, no underwriters or agents would be involved.
Institutional Purchasers
We may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus supplement or free writing prospectus, as the case may be, will provide the details of any such arrangement, including the offering price and commissions payable.
We will enter into such delayed contracts only with institutional purchasers that we approve. These institutions may include commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification; Other Relationships
We may have agreements with underwriters, dealers, agents and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act. Underwriters, dealers, agents and remarketing firms, and their affiliates, may engage in transactions with, or perform services for, us in the ordinary course of business. These transactions include commercial banking and investment banking transactions.
Market Making, Stabilization and Other Transactions
There is currently no market for any of the offered securities, other than our common stock, which is listed for trading on the NYSE. If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price, depending upon prevailing interest rates, the market for similar securities and other factors. While it is possible that an underwriter could inform us that it intended to make a market in the offered securities, such underwriter would not be obligated to do so, and any such market making could be discontinued at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop for the offered securities. We have no current plans for listing of preferred stock, depositary shares, debt securities or warrants offered by this prospectus on any securities exchange; any such listing with respect to any particular preferred stock, depositary shares, debt securities or warrants will be described in an applicable prospectus supplement or free writing prospectus, as the case may be.
In connection with any offering of securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. Specifically, the underwriters may overallot in connection with an offering, creating a short position in the securities for their account. In addition, to cover overallotments or to stabilize the price of the securities, the underwriters may bid for, and purchase, securities in the open market. Finally, an underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions, or otherwise. Any of these activities may cause the price of securities to be higher than it would be in the absence of the transactions. The underwriters are not required to engage in these activities and, if they commence these transactions, may discontinue any of these activities at any time.
Fees and Commissions
In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer shall be fair and reasonable.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain legal matters regarding the validity of the securities offered hereby will be passed upon for us by Latham & Watkins LLP, Los Angeles, California, and, with respect to certain matters of Maryland law, Ballard Spahr LLP, Baltimore, Maryland. Latham & Watkins LLP, Los Angeles, California, has issued an opinion to us regarding certain tax matters described under “United States Federal Income Tax Considerations.” Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements of Healthpeak Properties, Inc. incorporated by reference in this prospectus, and the effectiveness of Healthpeak Properties, Inc.’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such financial statements are incorporated by reference in reliance upon the reports of such firm, given their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses relating to the registration of the securities will be borne by the registrant. Such expenses are estimated to be as follows:
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Amount
to be paid
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SEC Registration Fee
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$ |
*
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Accounting Fees and Expenses
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|
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**
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Legal Fees
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**
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Printing Fees
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**
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Transfer Agent’s and Trustees’ Fees and Expenses
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|
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**
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Rating Agency Fees
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**
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Miscellaneous expenses
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**
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Total
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$ |
**
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*
Deferred in accordance with Rules 456(b) and 457(r) of the Securities Act.
**
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnifications of directors and officers.
Set forth below is a description of certain provisions of the organizational documents for each registrant, as applicable, and a description of the applicable state law for each registrant, respectively.
Insofar as the following provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the Securities and Exchange Commission, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Healthpeak Properties, Inc.
Healthpeak Properties, Inc.’s charter (the “Charter”) limits the liability of our directors and officers to the Company and our stockholders for money damages to the fullest extent permitted by the laws of the State of Maryland. The Maryland General Corporation Law presently permits the liability of directors and officers to a corporation or its stockholders for money damages to be limited, except (i) to the extent that it is proved that the director or officer actually received an improper benefit or profit or (ii) if the judgment or other final adjudication is entered in a proceeding based on a finding that the directors or officers action, or failure to act, was a result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. The provisions of the Charter do not limit the ability of us or our stockholders to obtain other relief, such as injunction or rescission.
Article X of our Amended and Restated Bylaws (the “Bylaws”) provides that we shall indemnify and hold harmless, in the manner and to the fullest extent permitted by law, any person who is or was a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding, whether or not by or in the right of the Company, and whether civil, criminal, administrative, investigative or otherwise, by reason of the fact that such person is or was our director or officer, or, as our director or officer, is or was serving at the request of us as a director, officer, trustee, partner, member, agent or employee of another corporation, partnership, limited liability company, association, joint venture, trust, benefit plan or other enterprise. To the fullest extent permitted by law, such indemnification shall include expenses (including attorneys’ fees), judgment, fines and amounts paid in settlement and any such expenses
may be paid by us in advance of the final disposition of such action, suit or proceeding and without requiring a preliminary determination as to the ultimate entitlement to indemnification. In addition, the Maryland General Corporation Law requires a corporation, as a condition to advancing expenses, to obtain (a) a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by such corporation as authorized by the Maryland General Corporation Law and (b) a written statement by or on his behalf to repay the amount paid or reimbursed by such corporation if it shall ultimately be determined that the standard of conduct was not met.
Article X of the Bylaws further provides that we may, with the approval of our board, provide such indemnification and advancement of expenses as set forth in the above paragraph to our agents and employees.
Section 2-418 of the Maryland General Corporation Law requires a corporation, unless its charter provides otherwise, which the Charter does not, to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he is made a party by reason of his service in that capacity, or in the defense of any claim, issue or matter in the proceeding. Section 2-418 of the Maryland General Corporation Law generally permits indemnification of any director or officer made a party to any proceedings by reason of service as a director or officer unless it is established that: (i) the act or omission of such person was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty; (ii) such person actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, such person had reasonable cause to believe that the act or omission was unlawful. The indemnity may include judgments, penalties, fines, settlements and reasonable expenses actually incurred by the director or officer in connection with the proceeding; provided, however, that if the proceeding is one by, or in the right of the corporation, indemnification is not permitted with respect to any proceeding in which the director or officer has been adjudged to be liable to the corporation. In addition, a director or officer may not be indemnified with respect to any proceeding charging improper personal benefit to the director or officer adjudged to be liable on the basis that personal benefit was improperly received. The termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent or an entry of an order of probation prior to judgment creates a rebuttable presumption that the director or officer did not meet the requisite standard of conduct required for permitted indemnification. The termination of any proceeding by judgment, order or settlement, however, does not create a presumption that the director or officer failed to meet the requisite standard of conduct for permitted indemnification.
Healthpeak OP, LLC
The operating agreement of Healthpeak OP, LLC provides that, to the fullest extent that a Maryland corporation may indemnify and advance expenses to directors and officers of a Maryland corporation under the laws of the State of Maryland, Healthpeak OP, LLC will indemnify, and will pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, any indemnitee (as defined in the operating agreement) who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service as an indemnitee. The operating agreement provides that, without limitation, the foregoing indemnity will extend to any liability of any indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of Healthpeak OP, LLC or any subsidiary of Healthpeak OP, LLC (including, without limitation, any indebtedness which Healthpeak OP, LLC or any subsidiary of Healthpeak OP, LLC has assumed or taken subject to). The operating agreement further provides that Healthpeak OP, LLC may indemnify each indemnitee to the fullest extent permitted by law and the operating agreement. The operating agreement provides that the termination of any proceeding by judgment, order or settlement does not create a presumption that the indemnitee did not meet the requisite standard of conduct set forth in the operating agreement, and that the termination of any proceeding by conviction of an indemnitee or upon a plea of nolo contendere or its equivalent by an indemnitee, or an entry of an order of probation against an indemnitee prior to judgment, does not create a presumption that such indemnitee acted in a manner contrary to that specified in the operating agreement with respect to the subject matter of such proceeding. The operating agreement further provides that any indemnification pursuant to the operating agreement will be made only out of the assets of Healthpeak OP, LLC, and neither the managing member nor any other holder will have any obligation to contribute to the capital of Healthpeak OP, LLC or otherwise provide funds to enable Healthpeak OP, LLC to fund its indemnification obligations under the operating agreement.
Under the operating agreement, an “indemnitee” includes Healthpeak Properties, Inc., as managing member, each present or former director of Healthpeak Properties, Inc. and officer of Healthpeak OP, LLC or Healthpeak Properties, Inc., and such other persons (including affiliates or employees of Healthpeak Properties, Inc. or Healthpeak OP, LLC) as Healthpeak OP, LLC may designate from time to time in its sole and absolute discretion.
DOC DR Holdco, LLC
The amended and restated operating agreement of DOC DR Holdco, LLC requires DOC DR Holdco, LLC, to the fullest extent permitted under the Maryland Limited Liability Company Act, to indemnify and advance expenses to Healthpeak OP, LLC, its officers, directors and any person acting on its behalf (irrespective of the capacity in which it acts) against any loss, damage, claim or expense (including attorneys’ fees) whatsoever incurred by Healthpeak OP, LLC, the officer, director, employee or agent relating to or arising out of any act or omission or alleged acts or omissions (whether or not constituting negligence or gross negligence) performed or omitted by Healthpeak OP, LLC, the officer, or director on behalf of the DOC DR Holdco, LLC. The operating agreement further provides that any indemnity under the operating agreement will be provided out of and to the extent of DOC DR Holdco, LLC’s assets and applicable insurance coverage, and neither the member nor any other person will have any personal liability on account thereof.
DOC DR, LLC
The operating agreement of DOC DR, LLC provides that, to the fullest extent that a Maryland corporation may indemnify and advance expenses to directors and officers of a Maryland corporation under the laws of the State of Maryland, DOC DR, LLC will indemnify, and will pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, any indemnitee (as defined in the operating agreement) who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service as an indemnitee. The operating agreement provides that, without limitation, the foregoing indemnity will extend to any liability of any indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of DOC DR, LLC or any subsidiary of DOC DR, LLC (including, without limitation, any indebtedness which DOC DR, LLC or any subsidiary of DOC DR, LLC has assumed or taken subject to). The operating agreement further provides that DOC DR, LLC may indemnify each indemnitee to the fullest extent permitted by law and the operating agreement. The operating agreement provides that the termination of any proceeding by judgment, order or settlement does not create a presumption that the indemnitee did not meet the requisite standard of conduct set forth in the operating agreement, and that the termination of any proceeding by conviction of an indemnitee or upon a plea of nolo contendere or its equivalent by an indemnitee, or an entry of an order of probation against an indemnitee prior to judgment, does not create a presumption that such indemnitee acted in a manner contrary to that specified in the operating agreement with respect to the subject matter of such proceeding. The operating agreement further provides that any indemnification pursuant to the operating agreement will be made only out of the assets of DOC DR, LLC, and neither the managing member nor any other holder will have any obligation to contribute to the capital of DOC DR, LLC or otherwise provide funds to enable DOC DR, LLC to fund its indemnification obligations under the operating agreement. Under the operating agreement, an “indemnitee” includes DOC DR Holdco, LLC, as managing member, Healthpeak Properties, Inc., Healthpeak OP, LLC, each present or former director of Healthpeak Properties, Inc. or DOC DR Holdco, LLC, and officer of DOC DR, LLC, DOC DR Holdco, LLC or Healthpeak Properties, Inc., and such other persons (including affiliates or employees of DOC DR Holdco, LLC or DOC DR, LLC) as DOC DR, LLC may designate from time to time in its sole and absolute discretion.
Item 16. Exhibits
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Exhibit
Number
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1.1*
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Form of Underwriting Agreement.
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2.1**
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Agreement and Plan of Merger, dated October 29, 2023, by and among Healthpeak Properties, Inc., Alpine Sub, LLC, Alpine OP Sub, LLC, Physicians Realty Trust and Physicians Realty L.P. (incorporated herein by reference to Annex A to the joint proxy statement/prospectus on Form S-4/A (File No. 333-276055) of Healthpeak filed January 9, 2024).
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3.1
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Articles of Amendment and Restatement of Healthpeak Properties, Inc. (formerly New Healthpeak, Inc.) (incorporated herein by reference to Exhibit 3.1 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed February 10, 2023).
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3.2
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Articles of Amendment of Healthpeak Properties, Inc. (formerly New Healthpeak, Inc.) (incorporated herein by reference to Exhibit 3.2 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed February 10, 2023).
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3.3
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Articles of Amendment of Healthpeak Properties, Inc. (incorporated herein by reference to Exhibit 3.1 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed March 1, 2024.)
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3.4
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Amended and Restated Bylaws of Healthpeak Properties, Inc. (incorporated herein by reference to Exhibit 3.4 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed February 10, 2023).
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3.5
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Amendment to Bylaws of Healthpeak Properties, Inc. (incorporated herein by reference to Exhibit 3.2 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed March 1, 2024.)
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3.6+
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3.7
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4.1*
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Form of Articles Supplementary for Preferred Stock of Healthpeak Properties, Inc. (including form of preferred stock certificate).
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4.2*
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Form of Depositary Agreement.
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4.3*
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Form of Depositary Receipt.
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4.4*
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Form of Debt Security.
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4.5+
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Amended and Restated Indenture, dated as of February 10, 2023 among Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee.
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4.6
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Sixteenth Supplemental Indenture, dated as of March 1, 2024, between Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., as guarantor, DOC DR Holdco, LLC , as guarantor, DOC DR, LLC, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated herein by reference to Exhibit 4.7 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed March 1, 2024).
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4.7
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Form of Indenture, among Healthpeak Properties, Inc., as issuer, Healthpeak OP, LLC, DOC DR, LLC and DOC DR Holdco, LLC, as guarantors, and U.S. Bank Trust Company, National Association, as trustee.
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4.8
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Form of Indenture, among Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., DOC DR, LLC and DOC DR Holdco, LLC, as guarantors, and U.S. Bank Trust Company, National Association, as trustee.
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4.9*
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Form of Warrant Agreement (including form of warrant certificate).
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5.1
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5.2
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8.1
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Exhibit
Number
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22.1
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23.1
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23.2
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23.3
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23.4
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24.1+
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Power of Attorney.
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25.1
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Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as Trustee, for the Amended and Restated Indenture, dated as of February 10, 2023, as amended by the Sixteenth Supplemental Indenture, dated as of March 1, 2024, among Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., DOC DR, LLC and DOC DR Holdco, LLC, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee.
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25.2
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Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of U.S. Bank Trust Company, National Association, as Trustee, for the form of Indenture, among Healthpeak Properties, Inc., as issuer, Healthpeak OP, LLC, DOC DR, LLC and DOC DR Holdco, LLC, as guarantors, and U.S. Bank Trust Company, National Association, as trustee.
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25.3
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Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of U.S. Bank Trust Company, National Association, as Trustee, for the form of Indenture, among Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., DOC DR, LLC and DOC DR Holdco, LLC, as guarantors, and U.S. Bank Trust Company, National Association, as trustee.
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107
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*
To be filed by amendment to this registration statement or incorporated by reference from documents filed or to be filed with the SEC under the Securities Exchange Act of 1934, as amended.
**
The schedules to the Agreement and Plan of Merger have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Healthpeak agrees to furnish supplementally a copy of such schedules, or any section thereof, to the SEC upon request.
+
Previously filed.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), 424(b)(5), or 424(b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), 415(a)(1)(vii), or 415(a)(1)(x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of the securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrants certify that they have reasonable grounds to believe that they meet all the requirements for filing on Form S-3 and have duly caused this registration statement to be signed on their behalves by the undersigned, thereunto duly authorized, in the city of Denver, state of Colorado, on the 5th day of February, 2025.
HEALTHPEAK PROPERTIES, INC.
By:
/s/ Scott M. Brinker
Scott M. Brinker
President and Chief Executive Officer
(Principal Executive Officer)
HEALTHPEAK OP, LLC
By:
HEALTHPEAK PROPERTIES, INC.
its managing member
By:
/s/ Scott M. Brinker
Scott M. Brinker
President and Chief Executive Officer
(Principal Executive Officer)
DOC DR HOLDCO, LLC
By:
HEALTHPEAK OP, LLC
its sole member
By:
HEALTHPEAK PROPERTIES, INC.
its managing member
By:
/s/ Scott M. Brinker
Scott M. Brinker
President and Chief Executive Officer
(Principal Executive Officer)
DOC DR, LLC
By:
DOC DR HOLDCO, LLC
its managing member
By:
HEALTHPEAK OP, LLC
its sole member
By:
HEALTHPEAK PROPERTIES, INC.
its managing member
By:
/s/ Scott M. Brinker
Scott M. Brinker
President and Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to the Registration Statement has been signed by each of the following persons in the capacities and on the dates indicated:
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Scott M. Brinker
SCOTT M. BRINKER
|
|
|
President and Chief Executive Officer (Principal Executive Officer) and Director
|
|
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February 5, 2025
|
|
| |
/s/ Peter A. Scott
PETER A. SCOTT
|
|
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Chief Financial Officer (Principal Financial Officer)
|
|
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February 5, 2025
|
|
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/s/ Shawn G. Johnston
SHAWN G. JOHNSTON
|
|
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Executive Vice President and Chief Accounting Officer (Principal Accounting Officer)
|
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February 5, 2025
|
|
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/s/ Katherine M. Sandstrom
KATHERINE M. SANDSTROM
|
|
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Chair of the Board
|
|
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February 5, 2025
|
|
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/s/ John T. Thomas
JOHN T. THOMAS
|
|
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Vice Chair of the Board
|
|
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February 5, 2025
|
|
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/s/ Brian G. Cartwright
BRIAN G. CARTWRIGHT
|
|
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Director
|
|
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February 5, 2025
|
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/s/ James B. Connor
JAMES B. CONNOR
|
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Director
|
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February 5, 2025
|
|
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/s/ R. Kent Griffin, Jr.
R. KENT GRIFFIN, JR.
|
|
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Director
|
|
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February 5, 2025
|
|
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/s/ Pamela J. Kessler
PAMELA J. KESSLER
|
|
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Director
|
|
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February 5, 2025
|
|
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/s/ Sara G. Lewis
SARA G. LEWIS
|
|
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Director
|
|
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February 5, 2025
|
|
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/s/ Ava E. Lias-Booker
AVA E. LIAS-BOOKER
|
|
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Director
|
|
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February 5, 2025
|
|
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/s/ Tommy G. Thompson
TOMMY G. THOMPSON
|
|
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Director
|
|
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February 5, 2025
|
|
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/s/ Richard A. Weiss
RICHARD A. WEISS
|
|
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Director
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February 5, 2025
|
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Exhibit 4.7
HEALTHPEAK PROPERTIES, INC.,
as issuer,
INDENTURE
Dated as of ___________, 20__
U.S. Bank Trust Company, National Association,
as Trustee
TABLE
OF CONTENTS
Page
| ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1. |
Definitions |
1 |
| Section 1.2. |
Other Definitions |
5 |
| Section 1.3. |
Incorporation by Reference of Trust Indenture Act |
5 |
| Section 1.4. |
Rules of Construction |
6 |
| ARTICLE II. THE SECURITIES |
6 |
| Section 2.1. |
Issuable in Series |
6 |
| Section 2.2. |
Establishment of Terms of Series of Securities |
7 |
| Section 2.3. |
Execution and Authentication |
10 |
| Section 2.4. |
Registrar, Paying Agent and Notice Agent |
11 |
| Section 2.5. |
Paying Agent to Hold Money in Trust |
12 |
| Section 2.6. |
Holder Lists |
12 |
| Section 2.7. |
Transfer and Exchange |
12 |
| Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities |
13 |
| Section 2.9. |
Outstanding Securities |
13 |
| Section 2.10. |
Treasury Securities |
14 |
| Section 2.11. |
Temporary Securities |
14 |
| Section 2.12. |
Cancellation |
14 |
| Section 2.13. |
Defaulted Interest |
15 |
| Section 2.14. |
Global Securities |
15 |
| Section 2.15. |
CUSIP Numbers |
17 |
| ARTICLE III. REDEMPTION |
17 |
| Section 3.1. |
Notice to Trustee |
17 |
| Section 3.2. |
Selection of Securities to be Redeemed |
18 |
| Section 3.3. |
Notice of Redemption |
18 |
| Section 3.4. |
Effect of Notice of Redemption |
19 |
| Section 3.5. |
Deposit of Redemption Price |
19 |
| Section 3.6. |
Securities Redeemed in Part |
19 |
| ARTICLE IV. COVENANTS |
19 |
| Section 4.1. |
Payment of Principal and Interest |
19 |
| Section 4.2. |
SEC Reports |
19 |
| Section 4.3. |
Compliance Certificate |
20 |
| Section 4.4. |
Stay, Extension and Usury Laws |
20 |
| ARTICLE V. SUCCESSORS |
21 |
| Section 5.1. |
When Company May Merge, Etc. |
21 |
| Section 5.2. |
Successor Entity Substituted |
21 |
| Section 5.3. |
Guarantors May Consolidate on Certain Terms |
22 |
| Section 5.4. |
Guarantors Successor to Be Substituted |
22 |
| ARTICLE VI. DEFAULTS AND REMEDIES |
22 |
| Section 6.1. |
Events of Default |
22 |
| Section 6.2. |
Acceleration of Maturity; Rescission and Annulment |
24 |
| Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
24 |
| Section 6.4. |
Trustee May File Proofs of Claim |
25 |
| Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities |
26 |
| Section 6.6. |
Application of Money Collected |
26 |
| Section 6.7. |
Limitation on Suits |
26 |
| Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest |
27 |
| Section 6.9. |
Restoration of Rights and Remedies |
27 |
| Section 6.10. |
Rights and Remedies Cumulative |
28 |
| Section 6.11. |
Delay or Omission Not Waiver |
28 |
| Section 6.12. |
Control by Holders |
28 |
| Section 6.13. |
Waiver of Past Defaults |
28 |
| Section 6.14. |
Undertaking for Costs |
29 |
| ARTICLE VII. TRUSTEE |
29 |
| Section 7.1. |
Duties of Trustee |
29 |
| Section 7.2. |
Rights of Trustee |
30 |
| Section 7.3. |
Individual Rights of Trustee |
31 |
| Section 7.4. |
Trustee’s Disclaimer |
32 |
| Section 7.5. |
Notice of Defaults |
32 |
| Section 7.6. |
Reports by Trustee to Holders |
32 |
| Section 7.7. |
Compensation and Indemnity |
32 |
| Section 7.8. |
Replacement of Trustee |
33 |
| Section 7.9. |
Successor Trustee by Merger, Etc. |
34 |
| Section 7.10. |
Eligibility; Disqualification |
34 |
| Section 7.11. |
Preferential Collection of Claims Against Company |
34 |
| ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
35 |
| Section 8.1. |
Satisfaction and Discharge of Indenture |
35 |
| Section 8.2. |
Application of Trust Funds; Indemnification |
36 |
| Section 8.3. |
Legal Defeasance of Securities of any Series |
37 |
| Section 8.4. |
Covenant Defeasance |
38 |
| Section 8.5. |
Repayment to Company |
39 |
| Section 8.6. |
Reinstatement |
39 |
| ARTICLE IX. AMENDMENTS AND WAIVERS |
40 |
| Section 9.1. |
Without Consent of Holders |
40 |
| Section 9.2. |
With Consent of Holders |
41 |
| Section 9.3. |
Limitations |
41 |
| Section 9.4. |
Compliance with Trust Indenture Act |
42 |
| Section 9.5. |
Revocation and Effect of Consents |
42 |
| Section 9.6. |
Notation on or Exchange of Securities |
42 |
| Section 9.7. |
Trustee Protected |
42 |
| ARTICLE X. MISCELLANEOUS |
43 |
| Section 10.1. |
Trust Indenture Act Controls |
43 |
| Section 10.2. |
Notices |
43 |
| Section 10.3. |
Communication by Holders with Other Holders |
44 |
| Section 10.4. |
Certificate and Opinion as to Conditions Precedent |
45 |
| Section 10.5. |
Statements Required in Certificate or Opinion |
45 |
| Section 10.6. |
Rules by Trustee and Agents |
45 |
| Section 10.7. |
Legal Holidays |
45 |
| Section 10.8. |
No Recourse Against Others |
46 |
| Section 10.9. |
Counterparts |
46 |
| Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
46 |
| Section 10.11. |
No Adverse Interpretation of Other Agreements |
47 |
| Section 10.12. |
Successors |
47 |
| Section 10.13. |
Severability |
47 |
| Section 10.14. |
Table of Contents, Headings, Etc. |
47 |
| Section 10.15. |
Securities in a Foreign Currency |
47 |
| Section 10.16. |
Judgment Currency |
48 |
| Section 10.17. |
Force Majeure |
48 |
| Section 10.18. |
U.S.A. Patriot Act |
49 |
| ARTICLE XI. SINKING FUNDS |
49 |
| Section 11.1. |
Applicability of Article |
49 |
| Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities |
49 |
| Section 11.3. |
Redemption of Securities for Sinking Fund |
50 |
| ARTICLE XII. GUARANTEE |
50 |
| Section 12.1. |
Unconditional Guarantee |
50 |
| Section 12.2. |
Limitation on Guarantors’ Liability |
51 |
| Section 12.3. |
Release of Guarantors from Guarantee |
52 |
HEALTHPEAK
PROPERTIES, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of ____________, 20__
| § 310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (a)(5) |
|
7.10 |
| (b) |
|
7.10 |
| § 311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
Not Applicable |
| § 312(a) |
|
2.6 |
| (b) |
|
10.3 |
| (c) |
|
10.3 |
| § 313(a) |
|
7.6 |
| (b)(1) |
|
7.6 |
| (b)(2) |
|
7.6 |
| (c)(1) |
|
7.6 |
| (d) |
|
7.6 |
| § 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 |
| § 315(a) |
|
7.1 |
| (b) |
|
7.5 |
| (c) |
|
7.1 |
| (d) |
|
7.1 |
| (e) |
|
6.14 |
| § 316(a) |
|
2.10 |
| (a)(1)(A) |
|
6.12 |
| (a)(1)(B) |
|
6.13 |
| (b) |
|
6.8 |
| § 317(a)(1) |
|
6.3 |
| (a)(2) |
|
6.4 |
| (b) |
|
2.5 |
| § 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__ between Healthpeak Properties, Inc., a Maryland corporation (“Company”), the Guarantors (as defined herein)
party hereto and U.S. Bank Trust Company, National Association, a national banking association, as trustee (“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 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 Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Corporate Secretary of the Company to have been adopted by the Board of Directors or pursuant
to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“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, a day on which banking institutions in the state in which the Corporate Trust Office is located or
a legal holiday in the City of New York, 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).
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer and delivered to the Trustee.
“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, which office at the date of the Indenture is located at the address for the Trustee set forth in Section 10.2, or such
other address as the Trustee may designate from time to time by notice to the Holders and the Company.
“CUSIP” means
the Committee on Uniform Security Identification Procedures and will be used pursuant to Section 2.15.
“Default”
means any event which is, or after notice, 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 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.
“DOC Guarantors”
means, collectively, DOC DR, LLC and DOC DR Holdco, LLC.
“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.
“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 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 supplemental indenture with respect
to such Series.
“Holder”
means a person in whose name a Security is registered on the Registrar’s books.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of 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.
“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.
“Officer”
means the Chair of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel,
any Deputy or Assistant General Counsel, the Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller, the Corporate
Secretary, any Assistant Corporate Secretary or any Executive Vice President, Senior Vice President, or Vice President of the Company
or any Guarantor, as the case may be. For the avoidance of doubt, any officer with the word “Chief” in his or her title is
deemed to be an Executive Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the requirements of this Indenture.
“Operating Company”
means Healthpeak OP, LLC.
“Opinion of Counsel”
means a written opinion of legal counsel, who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
The opinion may contain customary limitations, conditions and exceptions.
“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.
“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 relating to this Indenture is
referred because of his or her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture, provided, however that, if at any time there is more than one person acting as Trustee under this
Indenture, “Securities,” with respect to any such person, shall mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any Series as to which such person is not Trustee.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the 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 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such 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 |
|
| | |
|
|
| “Agent Member” | |
2.14.6 |
|
| “Bankruptcy Law” | |
6.1 |
|
| “Guarantee” | |
12.1(b) |
|
| “Custodian” | |
6.1 |
|
| “Event of Default” | |
6.1 |
|
| “Judgment Currency” | |
10.16 |
|
| “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 |
|
| “Specified Courts” | |
10.10 |
|
| “successor person” | |
5.1 |
|
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 Holder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the indenture
securities means the 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;
(e) provisions
apply to successive events and transactions;
(f) in
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including,” and the words “to” and “until” each mean “to but excluding”; and
(g) the
phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other electronic means of transmission, unless
otherwise indicated.
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 2.2.30)
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) and whether additional Securities of that Series may be issued
without the consent of Holders of outstanding Securities of that Series or any other Series; provided, that in the event that
additional Securities of such Series may be so issued, the terms thereof shall indicate whether any such additional Securities shall
have the same terms as the prior Securities of such Series or whether the Issuer may establish additional or different terms with
respect to such additional Securities;
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, any regular record date for the interest payable on any interest payment date and the basis upon which
interest shall be calculated if other than that of a 360 day year of twelve 30 day months;
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 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 Company;
2.2.8. the
obligation, if any, of the 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;
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 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;
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 applicable 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 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
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;
2.2.24. if
a person other than U.S. Bank Trust Company, National Association is to act as Trustee for the Securities of that Series, the name and
location of the designated corporate trust office of such Trustee;
2.2.25. the
securities exchanges, if any, on which the Securities of the Series may be listed;
2.2.26. if
the Securities of that Series do not bear interest, the applicable dates for purposes of Section 2.6;
2.2.27. if
Securities of the Series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Securities;
2.2.28. whether
Securities of that Series are to be issuable in bearer form and any additions or changes to any of the provisions of this Indenture
as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons;
2.2.29. the
applicability, if any, of Sections 8.3 and/or 8.4 to the Securities of the Series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article VIII; and
2.2.30. any
change in the right of the Trustee or the right of the requisite Holders of Securities to declare the principal amount thereof due and
payable.
All Securities of any particular
Series shall be substantially identical except as to denomination and the date from which interest, if any, shall accrue, and except
as may otherwise be provided in or pursuant to such Board Resolutions and set forth in such Officer’s Certificate relating thereto
or provided in or pursuant to any supplemental indenture hereto. 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
for the Company by manual, facsimile or electronic 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 signature of an authorized signatory 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 a 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 Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4 and
10.5.
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 determines that such action may expose the Trustee to
personal liability.
The Trustee may appoint an authenticating
agent acceptable to the 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 Company or an Affiliate of the Company.
Section 2.4. Registrar,
Paying Agent and Notice Agent.
The 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 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 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 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 Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment of the Trustee
as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal
process on the Company.
The 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 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 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 Company or any of its Affiliates may serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee 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. The
rights, powers, duties, obligations and actions of each Agent under this Indenture are several and not joint or joint and several, and
the Agents shall only be obliged to perform those duties expressly set out in this Indenture and shall have no implied duties.
Section 2.5. Paying
Agent to Hold Money in Trust.
The 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 Holders 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 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 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 Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities all money held by it as Paying
Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent
for the Securities. For the avoidance of doubt, a Paying Agent and the Trustee shall be held harmless and have no liability with respect
to payments or disbursements (including to the Holders) until they have confirmed receipt of funds sufficient to make the relevant payment.
No money held by an Agent needs to be segregated except as is required by law.
Section 2.6. Holder
Lists.
If it is serving as Registrar,
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 Holders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the
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, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each
Series of Securities.
Every
Holder, by receiving and holding Securities, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA § 312, regardless of the source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made under TIA § 312(b).
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 request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the 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 sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent, (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 or (c) to register the transfer of or exchange Securities of any Series between
a record date and payment date for such Series of Securities.
Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the Trustee, the 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 Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) 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 Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt
of a Company Order 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 Company in its discretion may, instead of issuing
a new Security, pay such Security following delivery of the documents and security or indemnity required in the preceding paragraph.
Upon the issuance of any new
Security under this Section, the 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 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, including those paid in accordance with the third-to-last paragraph of Section 2.8.
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 Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date as provided in this Indenture, then on and after that date such Securities of the Series cease
to be outstanding and interest on them ceases to accrue.
The 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 Company or an Affiliate of the 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.
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 Company or any Affiliate of the 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 Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a 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.
Any temporary Global Security
and any permanent Global Security shall, unless otherwise provided therein, be delivered to the Depositary designated pursuant to Section 2.2
or shall be held by the Custodian on behalf of such Depositary.
Section 2.12. Cancellation.
The 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 in accordance with its then customary procedures (subject
to the record retention requirements of the Exchange Act and the Trustee) and deliver a certificate of such cancellation to the Company
upon written request of the Company. The 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 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 Holders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the Trustee and
to each Holder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid.
The 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 (i) such Depositary notifies the 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 Company fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event or (ii) the 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.
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.
None of the Trustee or any Agent
shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
None of the Trustee or any Agent
shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depositary
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under
or with respect to such Security.
2.14.3. Legends.
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.”
In addition, so long as The
Depository Trust Company (“DTC”) is the Depositary, each Global Security registered in the name of DTC or its nominee
shall bear a legend in substantially the following form:
“UNLESS THIS GLOBAL SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
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. Agent
Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered Holders
shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section 2.15. CUSIP
Numbers.
The 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 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 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 the Series of Securities to be redeemed. The Company shall give the notice at
least 15 days before the redemption date (or such shorter period as may be acceptable to the Trustee).
Section 3.2. Selection
of Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected
as follows: (a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if
the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or (c) if not otherwise provided for under clause (a) or (b) in the
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 Securities
to be redeemed shall be selected from Securities of the Series outstanding not previously called for redemption. Portions of the
principal of Securities of the Series that have denominations larger than $1,000 may be selected for redemption. Securities of the
Series and portions of them it selected for redemption 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. Neither the Trustee nor the Paying Agent
shall be liable for any selection made by it in accordance with this paragraph (including the procedures of the Depositary).
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 Company shall send or cause to be sent by first-class mail or electronically, in accordance
with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed, with a copy to the Trustee.
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 unless the Company defaults
in the deposit of the redemption price;
(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 Company’s written
request, the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company
has delivered to the Trustee, at least ten (10) days (unless a shorter time shall 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 and the form of such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is
sent 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. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate
for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, if any, to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.
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 Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will duly and punctually pay or cause to be paid when due the
principal of and 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 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.
The Company shall, so long as
any Securities of a Series are outstanding, deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed
with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of
this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates). All such reports, information or documents referred to in this Section 4.2 that the Company files
with the SEC via the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted to Holders at the time such
reports, information or documents are filed via the EDGAR system (or any successor system).
Section 4.3. Compliance
Certificate.
The Company and each Guarantor
(to the extent that such Guarantor is so required under the TIA) shall, so long as any Securities of a Series are outstanding, deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating that a review
of the activities of the Guarantor, 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 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 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 the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company and the Guarantors
covenant (to the extent that they may lawfully do so) that they 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 Company and the Guarantors (to the extent they may
lawfully do so) hereby expressly waive all benefit or advantage of any such law and covenants that they 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 has been enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the
Company is the surviving entity or the successor person (if other than the Company) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes by supplemental indenture the Company’s
obligations on the Securities and under this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing.
The 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 each stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any
Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Entity Substituted.
Upon any consolidation or merger,
or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor entity formed by such consolidation or into or with which the 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 Company under this
Indenture with the same effect as if such successor entity had been named as the Company herein; provided, however, that
the predecessor 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.
Section 5.3. Guarantors
May Consolidate on Certain Terms.
Each of the Guarantors may consolidate
with or merge with or into, or sell, assign convey, transfer or lease all or substantially all of such Guarantor’s respective property
and assets to, any successor person; provided, however, that the following conditions are met:
(a) such
Guarantor (i) shall be the continuing entity, or the successor entity (if other than such Guarantor) formed by or resulting from
any consolidation or merger or which shall have received the sale, assignment, conveyance, transfer or lease of assets and property, (ii) shall
be a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and
(iii) shall expressly assume the obligations of such Guarantor under the Guarantee and punctual performance and observance of all
of the covenants and conditions in this Indenture; provided, that the foregoing requirement will not apply (x) upon the sale or other
disposition (including by way of consolidation or merger), in one transaction or a series of related transactions, of a majority of the
total voting power of the capital stock or other interests of the respective Guarantor (other than to the Company or any Affiliate of
the Company) or (y) upon the sale or disposition of all or substantially all the property of the respective Guarantor (other than
to any Affiliate of the Company); and
(b) immediately
after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing.
Such Guarantor 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 each stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any
Subsidiary of each Guarantor may consolidate with, merge into or transfer all or part of its properties to such Guarantor. Neither an
Officer’s Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.4. Guarantors
Successor to Be Substituted.
Upon any consolidation or merger,
or any sale, lease, transfer, conveyance or other disposition of all or substantially all of the assets of such Guarantor in accordance
with Section 5.3, the successor entity formed by such consolidation or into or with which such Guarantor 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, such Guarantor under this Indenture with the same effect as if such successor entity had been named as such Guarantor herein; provided,
however, that the predecessor person 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 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);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the performance or breach of any covenant or warranty of the Company in the Securities of that Series or 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 60 days
after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders
of not less than 25% in 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;
(d) the
Company or any Guarantor pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(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;
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company or any Guarantor in an involuntary case,
(ii) appoints
a Custodian of the Company, any Guarantor or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company or any Guarantor,
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.
The Company will provide the
Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event
of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company
is taking or proposes to take in respect thereof.
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 25% 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 Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or such 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 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.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The 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,
(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, if any, when and as due by the terms of a Security,
then, the Company and the Guarantors 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 compensation, reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company or the Guarantors
fail 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 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 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, subject to Article VII hereof, 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 Company or any other obligor upon the Securities or the property of the 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 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 or, if the Securities of such Series are Discount Securities, such amounts
as may be due and payable with respect to such Securities pursuant to an acceleration in accordance with Section 6.2, 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 compensation, reasonable 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 such payments shall be made directly to the Holders, to pay to the Trustee any amount due it for
the compensation, reasonable 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.
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 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 not less than 25% 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 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.
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 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 7.1, 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
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity 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, by written notice to the Trustee and the Company, 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 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, and no implied covenants or obligations
will be read into this Indenture against the Trustee.
(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.
(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 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 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 in its satisfaction.
(h) The
Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee when acting in any other capacity hereunder shall
be entitled to the protections and immunities as are set forth in this Article VII.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities under this Indenture.
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 or an Opinion of Counsel or both. 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 or Opinion
of Counsel.
(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.
(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 in good faith 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 satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(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 a Responsible Officer 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.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) The
Trustee will not be required to give any bond or surety in respect of the execution of this Indenture or otherwise.
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 Company or an Affiliate of the 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. The Trustee shall not be accountable for the Company’s use of
the proceeds from the Securities and shall not be responsible for any statement in the Securities other than its certificate of 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 send to each Holder of the Securities of that Series, in the manner set forth in Section 10.2,
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 Holders of that Series. The Trustee will not be deemed
to have notice or be charged with knowledge of any Default or Event of Default unless written notice thereof has been received by a Responsible
Officer, and such notice references the applicable Series of Securities and this Indenture and states on its face that a Default
or Event of Default has occurred.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days after each [[
] commencing [ ], [ ]], the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the register kept by
the Registrar, a brief report dated as of such date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its mailing to Holders of any Series shall be filed with the SEC and each national securities exchange on which the Securities
of that Series are listed. The 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 Company shall pay to the
Trustee from time to time compensation for its services as the 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 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.
The Company shall indemnify
each of the Trustee and any predecessor Trustee (including for 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 Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The 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, as determined by a final decision of a court of competent jurisdiction.
To secure the 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 and the resignation or removal of the Trustee.
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 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 Company. The 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) 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 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 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 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.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the 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
send a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the 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.
Any organization or entity into
which the Trustee may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity
shall be otherwise qualified and eligible under Section 7.10, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 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 § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject
to TIA § 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, 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 by reason of sending a notice of redemption or otherwise,
(2) will
become due and payable at their Stated Maturity within one year,
(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 Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the 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 an amount of money or U.S.
Government Obligations, which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including
mandatory sinking fund payments or analogous payments) of and interest on all the Securities of such Series on the dates such installments
of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, (x) the obligations of the Company to the Trustee under Section 7.7, (y) 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,
and (z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith
shall survive.
If the 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 and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 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 8.1, 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 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 Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee (which indemnity shall survive termination of this Indenture) against any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections
8.1, 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 Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 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.
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 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 Company, shall, upon receipt of a 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, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall
have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds 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 principal or interest 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 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 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
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the 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;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
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 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, 4.4 and 5.1 and,
unless otherwise specified therein, 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 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, but, except as specified above, the remainder of this Indenture and such Securities will
be unaffected thereby; provided that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably 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 (including mandatory sinking fund payments or analogous
payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest 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 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 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
Company shall have delivered to the Trustee an Opinion of Counsel to the effect 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 and covenant defeasance and will be subject
to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and
covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
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 Company.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the 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 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 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 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 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 Holder:
(a) to
cure any ambiguity, 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 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 Holder;
(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;
(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.
Subject to Section 9.3,
the 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 Holders of each such Series. Except as provided in Section 6.13, and subject to Section 9.3, 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 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 Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send 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
Holder 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 Sections 6.8, 6.13 or 9.3 (this sentence);
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the 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 Holder of each Series affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (i) of Section 9.3 or requires the consent of each Holder affected, as set forth in a supplemental
indenture or Officer’s Certificate in respect to a particular Series of Securities. 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 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 second
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 Company or the Trustee may,
but shall not be obligated to, place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.3 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, upon request, an Officer’s Certificate and an Opinion of Counsel complying
with Sections 10.4 and 10.5 and (subject to Section 7.1 and 7.2) shall be fully protected in relying upon such Officer’s Certificate
and/or Opinion of Counsel. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s Certificate and
Opinion of Counsel, except that the Trustee need not sign any supplemental indenture that adversely affects its rights, duties, liabilities
or immunities under this Indenture.
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 Company, any Guarantor or the Trustee to the other, or by a Holder to the Company, and Guarantor or the Trustee, is duly given
if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), email or overnight
air courier guaranteeing next day delivery, to the others’ address:
if to the Company or any Guarantor:
Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500,
Denver, Colorado 80237
Attention: General Counsel
Telephone: 720.428.5050
with a copy to:
Latham & Watkins
LLP
10250 Constellation Blvd.,
Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Telephone: 213.891.7339
if to the Trustee:
U.S. Bank Trust Company, National Association
633 West 5th Street, 24th Floor
Los Angeles, California 90071
Attention: B. Scarbrough (Healthpeak Notes Administrator)
Telephone: 213-615-6047
with a copy to:
Shipman & Goodwin LLP
One Constitution Plaza
Hartford, Connecticut 06103
Attention: Marie Pollio
Telephone: 860-251-5561
The 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 Holder shall be sent electronically or by first-class mail or overnight air courier to his, her or its address shown on the register
kept by the Registrar, in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Holder of any
Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company sends a notice
or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The
Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission
(including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee)
shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and
electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
communication, and the risk of interception or misuse by third parties.
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.
Holders of any Series may
communicate pursuant to TIA § 312(b) with other Holders 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 Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the 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 § 314(a)(4)) shall comply with the provisions of TIA § 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, such person has made such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(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 Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal
Holidays.
If a payment date for any payment
made under this Indenture is not a Business Day, payment may be made on the next succeeding Business Day, and no interest shall accrue
for the intervening period.
Section 10.8. No
Recourse Against Others.
A director, officer, employee
or stockholder (past or present), as such, of the Company or any Guarantor shall not have any liability for any obligations of the 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 Holder 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 electronic format (e.g., “.pdf” or “.tif”) 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 electronic format (e.g., “.pdf” or “.tif”)
shall be deemed to be their original signatures for all purposes.
Unless otherwise provided herein
or in any other Securities, the words “execute”, “execution”, “signed” and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any Securities or any of
the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
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.
THE
COMPANY, THE GUARANTORS, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, 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,
THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding
arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The Company, the Guarantors, the Trustee and the Holders (by their acceptance
of the Securities) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or
other proceeding has been brought in an inconvenient forum.
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 Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the 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, 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 made by the Company 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 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.
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 Company and each Guarantor
agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of the principal of or 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.
Section 10.17. Force
Majeure.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes, pandemics, epidemics or other public health emergencies, or acts of God,
and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood
that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
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 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 Company or redeemed either at the election of the
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 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 Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
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 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 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 Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2, and the Company shall send or cause to be sent a notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with
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 supplemental indenture or an Officer’s Certificate
with respect to such Series.
(b) For
value received, by execution of this Indenture, 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, premium, if any,
and interest on each Series of Securities for which such Guarantor has executed a supplemental indenture or an Officer’s Certificate
with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by
the Company, when and as such principal, premium, if any, interest, and such other amounts as 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 12.2.
(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 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 Company or any other Guarantor.
(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 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 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 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. Limitation
on Guarantors’ Liability.
Each Guarantor by its acceptance
hereof and each Holder of Security and the Trustee 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 and the Trustee 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 12.3. 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 12.3. 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 Company, of all of the 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 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.
(b) In
addition, the Guarantees of the DOC Guarantors shall be automatically and unconditionally released: (i) upon the sale or other disposition
(including by way of consolidation or merger), in one transaction or a series of related transactions, of a majority of the total voting
power of the capital stock or other interests of the respective DOC Guarantor (other than to the Company or any Affiliate of the Company);
(ii) upon the sale or disposition of all or substantially all the property of the respective DOC Guarantor (other than to any Affiliate
of the Company); or (iii) on the date and time at which none of the DOC DR, LLC’s 4.300% Senior Notes due 2027, 3.950% Senior
Notes due 2028, and 2.625% Senior Notes due 2031 remain outstanding. The Issuer will give written notice as promptly as practicable to
the Trustee of the automatic release of any DOC Guarantee pursuant to this Section 12.3.
(c) Upon
receipt of a written request of the Company accompanied by an Officer’s Certificate or Opinion of Counsel to the effect that any
Guarantor is entitled to be released from the Guarantee in accordance with the provisions of this Indenture, the Trustee shall deliver
instruments reasonably requested by the Company or such Guarantor evidencing the release of such Guarantor from the Guarantee, such instruments
to be prepared by the Company or such Guarantor and delivered to the Trustee. 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]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
| |
HEALTHPEAK PROPERTIES, INC. |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Its: |
| |
|
| |
HEALTHPEAK OP, LLC, as
Guarantor |
| |
|
| |
By: Healthpeak Properties, Inc.,
its managing member. |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Its: |
| |
|
| |
DOC DR HOLDCO, LLC, as
Guarantor |
| |
|
| |
By: Healthpeak OP, LLC, its Sole Member |
| |
|
| |
By: Healthpeak Properties, Inc.,
its Managing Member |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Its: |
| |
DOC DR, LLC, as
Guarantor |
| |
|
| |
By: DOC DR Holdco, LLC, a Maryland
limited liability company, its Managing Member |
| |
|
| |
By: Healthpeak OP, LLC, its Sole Member |
| |
|
| |
By: Healthpeak Properties, Inc.,
its Managing Member |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Its: |
| |
|
| |
U.S. Bank Trust Company, National
Association, as Trustee |
| |
|
| |
By: |
|
| |
|
Name: |
| |
|
Its: |
Exhibit 4.8
HEALTHPEAK OP, LLC,
as issuer,
INDENTURE
Dated as of ___________, 20__
U.S. Bank Trust Company, National Association,
as Trustee
TABLE
OF CONTENTS
Page
| ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1. |
Definitions |
1 |
| Section 1.2. |
Other Definitions |
5 |
| Section 1.3. |
Incorporation by Reference of Trust Indenture Act |
5 |
| Section 1.4. |
Rules of Construction |
6 |
| ARTICLE II. THE SECURITIES |
6 |
| Section 2.1. |
Issuable in Series |
6 |
| Section 2.2. |
Establishment of Terms of Series of Securities |
7 |
| Section 2.3. |
Execution and Authentication |
10 |
| Section 2.4. |
Registrar, Paying Agent and Notice Agent |
11 |
| Section 2.5. |
Paying Agent to Hold Money in Trust |
11 |
| Section 2.6. |
Holder Lists |
12 |
| Section 2.7. |
Transfer and Exchange |
12 |
| Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities |
13 |
| Section 2.9. |
Outstanding Securities |
13 |
| Section 2.10. |
Treasury Securities |
14 |
| Section 2.11. |
Temporary Securities |
14 |
| Section 2.12. |
Cancellation |
14 |
| Section 2.13. |
Defaulted Interest |
15 |
| Section 2.14. |
Global Securities |
15 |
| Section 2.15. |
CUSIP Numbers |
17 |
| ARTICLE III. REDEMPTION |
17 |
| Section 3.1. |
Notice to Trustee |
17 |
| Section 3.2. |
Selection of Securities to be Redeemed |
18 |
| Section 3.3. |
Notice of Redemption |
18 |
| Section 3.4. |
Effect of Notice of Redemption |
19 |
| Section 3.5. |
Deposit of Redemption Price |
19 |
| Section 3.6. |
Securities Redeemed in Part |
19 |
| ARTICLE IV. COVENANTS |
19 |
| Section 4.1. |
Payment of Principal and Interest |
19 |
| Section 4.2. |
SEC Reports |
20 |
| Section 4.3. |
Compliance Certificate |
20 |
| Section 4.4. |
Stay, Extension and Usury Laws |
20 |
| ARTICLE V. SUCCESSORS |
21 |
| Section 5.1. |
When Company May Merge, Etc |
21 |
| Section 5.2. |
Successor Entity Substituted |
21 |
| Section 5.3. |
Managing Member May Consolidate on Certain Terms |
22 |
| Section 5.4. |
Managing Member Successor to Be Substituted |
22 |
| Section 5.5. |
DOC Guarantors May Consolidate on Certain Terms |
23 |
| Section 5.6. |
DOC Guarantors Successor to Be Substituted |
23 |
| ARTICLE VI. DEFAULTS AND REMEDIES |
23 |
| Section 6.1. |
Events of Default |
23 |
| Section 6.2. |
Acceleration of Maturity; Rescission and Annulment |
25 |
| Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
25 |
| Section 6.4. |
Trustee May File Proofs of Claim |
26 |
| Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities |
27 |
| Section 6.6. |
Application of Money Collected |
27 |
| Section 6.7. |
Limitation on Suits |
27 |
| Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest |
28 |
| Section 6.9. |
Restoration of Rights and Remedies |
28 |
| Section 6.10. |
Rights and Remedies Cumulative |
28 |
| Section 6.11. |
Delay or Omission Not Waiver |
29 |
| Section 6.12. |
Control by Holders |
29 |
| Section 6.13. |
Waiver of Past Defaults |
29 |
| Section 6.14. |
Undertaking for Costs |
30 |
| ARTICLE VII. TRUSTEE |
30 |
| Section 7.1. |
Duties of Trustee |
30 |
| Section 7.2. |
Rights of Trustee |
31 |
| Section 7.3. |
Individual Rights of Trustee |
32 |
| Section 7.4. |
Trustee’s Disclaimer |
33 |
| Section 7.5. |
Notice of Defaults |
33 |
| Section 7.6. |
Reports by Trustee to Holders |
33 |
| Section 7.7. |
Compensation and Indemnity |
33 |
| Section 7.8. |
Replacement of Trustee. |
34 |
| Section 7.9. |
Successor Trustee by Merger, Etc. |
35 |
| Section 7.10. |
Eligibility; Disqualification |
35 |
| Section 7.11. |
Preferential Collection of Claims Against Company |
35 |
| ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
36 |
| Section 8.1. |
Satisfaction and Discharge of Indenture |
36 |
| Section 8.2. |
Application of Trust Funds; Indemnification |
37 |
| Section 8.3. |
Legal Defeasance of Securities of any Series |
38 |
| Section 8.4. |
Covenant Defeasance |
39 |
| Section 8.5. |
Repayment to Company |
40 |
| Section 8.6. |
Reinstatement |
40 |
| ARTICLE IX. AMENDMENTS AND WAIVERS |
41 |
| Section 9.1. |
Without Consent of Holders |
41 |
| Section 9.2. |
With Consent of Holders |
42 |
| Section 9.3. |
Limitations |
42 |
| Section 9.4. |
Compliance with Trust Indenture Act |
43 |
| Section 9.5. |
Revocation and Effect of Consents |
43 |
| Section 9.6. |
Notation on or Exchange of Securities |
43 |
| Section 9.7. |
Trustee Protected |
44 |
| ARTICLE X. MISCELLANEOUS |
44 |
| Section 10.1. |
Trust Indenture Act Controls |
44 |
| Section 10.2. |
Notices |
44 |
| Section 10.3. |
Communication by Holders with Other Holders |
46 |
| Section 10.4. |
Certificate and Opinion as to Conditions Precedent |
46 |
| Section 10.5. |
Statements Required in Certificate or Opinion |
46 |
| Section 10.6. |
Rules by Trustee and Agents |
46 |
| Section 10.7. |
Legal Holidays |
47 |
| Section 10.8. |
No Recourse Against Others |
47 |
| Section 10.9. |
Counterparts |
47 |
| Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
47 |
| Section 10.11. |
Successors |
48 |
| Section 10.12. |
No Adverse Interpretation of Other Agreements |
48 |
| Section 10.13. |
Severability |
48 |
| Section 10.14. |
Table of Contents, Headings, Etc |
48 |
| Section 10.15. |
Securities in a Foreign Currency |
49 |
| Section 10.16. |
Judgment Currency |
49 |
| Section 10.17. |
Force Majeure |
50 |
| Section 10.18. |
U.S.A. Patriot Act |
50 |
| ARTICLE XI. SINKING FUNDS |
50 |
| Section 11.1. |
Applicability of Article |
50 |
| Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities |
50 |
| Section 11.3. |
Redemption of Securities for Sinking Fund |
51 |
| ARTICLE XII. GUARANTEE |
51 |
| Section 12.1. |
Unconditional Guarantee |
51 |
| Section 12.2. |
Limitation on Guarantors’ Liability. |
53 |
| Section 12.3. |
Release of Guarantors from Guarantee |
53 |
HEALTHPEAK
OP, LLC
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of ____________, 20__
| § 310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (a)(5) |
|
7.10 |
| (b) |
|
7.10 |
| § 311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
Not Applicable |
| § 312(a) |
|
2.6 |
| (b) |
|
10.3 |
| (c) |
|
10.3 |
| § 313(a) |
|
7.6 |
| (b)(1) |
|
7.6 |
| (b)(2) |
|
7.6 |
| (c)(1) |
|
7.6 |
| (d) |
|
7.6 |
| § 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 |
| § 315(a) |
|
7.1 |
| (b) |
|
7.5 |
| (c) |
|
7.1 |
| (d) |
|
7.1 |
| (e) |
|
6.14 |
| § 316(a) |
|
2.10 |
| (a)(1)(A) |
|
6.12 |
| (a)(1)(B) |
|
6.13 |
| (b) |
|
6.8 |
| § 317(a)(1) |
|
6.3 |
| (a)(2) |
|
6.4 |
| (b) |
|
2.5 |
| § 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__ between Healthpeak OP, LLC, a Maryland limited liability company (“Company”), the
Guarantors (as defined herein) party hereto and U.S. Bank Trust Company, National Association, a national banking association, as trustee
(“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 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 copy of a resolution certified by the Corporate Secretary of the Managing Member to have been adopted by the Board of Directors or pursuant
to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“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, a day on which banking institutions in the state in which the Corporate Trust Office is located or
a legal holiday in the City of New York, 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).
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written order signed in the name of the Company by an Officer of the Managing Member and delivered
to the Trustee.
“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, which office at the date of the Indenture is located at the address for the Trustee set forth in Section 10.2, or such
other address as the Trustee may designate from time to time by notice to the Holders and the Company.
“CUSIP” means
the Committee on Uniform Security Identification Procedures and will be used pursuant to Section 2.15.
“Default”
means any event which is, or after notice, 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 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.
“DOC Guarantors”
means, collectively, DOC DR, LLC and DOC DR Holdco, LLC.
“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.
“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 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 supplemental indenture with respect
to such Series.
“Holder”
means a person in whose name a Security is registered on the Registrar’s books.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of 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 Healthpeak Properties, Inc., a Maryland corporation, and, subject to the provision in Article V, its successors and assigns.
“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.
“Officer”
means the Chair of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel,
any Deputy or Assistant General Counsel, the Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller, the Corporate
Secretary, any Assistant Corporate Secretary or any Executive Vice President, Senior Vice President, or Vice President of the Managing
Member or any Guarantor, as the case may be. For the avoidance of doubt, any officer with the word “Chief” in his or her title
is deemed to be an Executive Vice President of the Company or the Managing Member.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the requirements of this Indenture.
“Opinion of
Counsel” means a written opinion of legal counsel, who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Managing Member. The opinion may contain customary limitations, conditions and exceptions.
“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.
“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 relating to this Indenture is
referred because of his or her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture, provided, however that, if at any time there is more than one person acting as Trustee under this
Indenture, “Securities,” with respect to any such person, shall mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any Series as to which such person is not Trustee.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the 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 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such 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 |
| |
|
| “Agent Member” |
2.14.6 |
| “Bankruptcy Law” |
6.1 |
| “Guarantee” |
12.1(b) |
| “Custodian” |
6.1 |
| “Event of Default” |
6.1 |
| “Judgment Currency” |
10.16 |
| “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 |
| “Specified Courts” |
10.10 |
| “successor person” |
5.1 |
| |
|
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 Holder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the indenture
securities means the 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;
(e) provisions
apply to successive events and transactions;
(f) in
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including,” and the words “to” and “until” each mean “to but excluding”; and
(g) the
phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other electronic means of transmission, unless
otherwise indicated.
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 2.2.30)
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) and whether additional Securities of that Series may be issued
without the consent of Holders of outstanding Securities of that Series or any other Series; provided, that in the event that
additional Securities of such Series may be so issued, the terms thereof shall indicate whether any such additional Securities shall
have the same terms as the prior Securities of such Series or whether the Issuer may establish additional or different terms with
respect to such additional Securities;
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, any regular record date for the interest payable on any interest payment date and the basis upon which
interest shall be calculated if other than that of a 360 day year of twelve 30 day months;
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 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 Company;
2.2.8. the
obligation, if any, of the 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;
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 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 any 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 applicable 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 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
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;
2.2.24. if
a person other than U.S. Bank Trust Company, National Association is to act as Trustee for the Securities of that Series, the name and
location of the designated corporate trust office of such Trustee;
2.2.25. the
securities exchanges, if any, on which the Securities of the Series may be listed;
2.2.26. if
the Securities of that Series do not bear interest, the applicable dates for purposes of Section 2.6;
2.2.27. if
Securities of the Series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Securities;
2.2.28. whether
Securities of that Series are to be issuable in bearer form and any additions or changes to any of the provisions of this Indenture
as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons;
2.2.29. the
applicability, if any, of Sections 8.3 and/or 8.4 to the Securities of the Series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article VIII; and
2.2.30. any
change in the right of the Trustee or the right of the requisite Holders of Securities to declare the principal amount thereof due and
payable.
All Securities of any particular
Series shall be substantially identical except as to denomination and the date from which interest, if any, shall accrue, and except
as may otherwise be provided in or pursuant to such Board Resolutions and set forth in such Officer’s Certificate relating thereto
or provided in or pursuant to any supplemental indenture hereto. 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
for the Company by manual, facsimile or electronic 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 signature of an authorized signatory 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 a 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 Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4 and
10.5.
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 determines that such action may expose the Trustee to
personal liability.
The Trustee may appoint an authenticating
agent acceptable to the 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 Company or an Affiliate of the Company.
Section 2.4. Registrar,
Paying Agent and Notice Agent.
The 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 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 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 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 Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment of the Trustee
as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal
process on the Company.
The 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 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 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 Company or any of its Affiliates may serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee 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. The
rights, powers, duties, obligations and actions of each Agent under this Indenture are several and not joint or joint and several, and
the Agents shall only be obliged to perform those duties expressly set out in this Indenture and shall have no implied duties.
Section 2.5. Paying
Agent to Hold Money in Trust.
The 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 Holders 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 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 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 Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities all money held by it as Paying
Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent
for the Securities. For the avoidance of doubt, a Paying Agent and the Trustee shall be held harmless and have no liability with respect
to payments or disbursements (including to the Holders) until they have confirmed receipt of funds sufficient to make the relevant payment.
No money held by an Agent needs to be segregated except as is required by law.
Section 2.6. Holder
Lists.
If it is serving as Registrar,
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 Holders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the
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, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each
Series of Securities.
Every
Holder, by receiving and holding Securities, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA § 312, regardless of the source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made under TIA § 312(b).
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 request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the 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 sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent, (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 or (c) to register the transfer of or exchange Securities of any Series between
a record date and payment date for such Series of Securities.
Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the Trustee, the 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 Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) 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 Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt
of a Company Order 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 Company in its discretion may, instead of issuing
a new Security, pay such Security following delivery of the documents and security or indemnity required in the preceding paragraph.
Upon the issuance of any new
Security under this Section, the 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 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, including those paid in accordance with the third-to-last paragraph of Section 2.8.
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 Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date as provided in this Indenture, then on and after that date such Securities of the Series cease
to be outstanding and interest on them ceases to accrue.
The 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 Company or an Affiliate of the 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.
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 Company or any Affiliate of the 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 Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a 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.
Any temporary Global Security
and any permanent Global Security shall, unless otherwise provided therein, be delivered to the Depositary designated pursuant to Section 2.2
or shall be held by the Custodian on behalf of such Depositary.
Section 2.12. Cancellation.
The 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 in accordance with its then customary procedures (subject
to the record retention requirements of the Exchange Act and the Trustee) and deliver a certificate of such cancellation to the Company
upon written request of the Company. The 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 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 Holders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the Trustee and
to each Holder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid.
The 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 (i) such Depositary notifies the 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 Company fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event or (ii) the 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.
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.
None of the Trustee or any Agent
shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
None of the Trustee or any Agent
shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depositary
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under
or with respect to such Security.
2.14.3. Legends.
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.”
In addition, so long as The
Depository Trust Company (“DTC”) is the Depositary, each Global Security registered in the name of DTC or its nominee
shall bear a legend in substantially the following form:
“UNLESS THIS GLOBAL SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
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. Agent
Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered Holders
shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section 2.15. CUSIP
Numbers.
The 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 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 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 the Series of Securities to be redeemed. The Company shall give the notice at
least 15 days before the redemption date (or such shorter period as may be acceptable to the Trustee).
Section 3.2. Selection
of Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected
as follows: (a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if
the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or (c) if not otherwise provided for under clause (a) or (b) in the
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 Securities
to be redeemed shall be selected from Securities of the Series outstanding not previously called for redemption. Portions of the
principal of Securities of the Series that have denominations larger than $1,000 may be selected for redemption. Securities of the
Series and portions of them it selected for redemption 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. Neither the Trustee nor the Paying Agent
shall be liable for any selection made by it in accordance with this paragraph (including the procedures of the Depositary).
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 Company shall send or cause to be sent by first-class mail or electronically, in accordance
with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed, with a copy to the Trustee.
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 unless the Company defaults
in the deposit of the redemption price;
(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 Company’s written
request, the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company
has delivered to the Trustee, at least ten (10) days (unless a shorter time shall 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 and the form of such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is
sent 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. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate
for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, if any, to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.
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 Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will duly and punctually pay or cause to be paid when due the
principal of and 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 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.
The Managing Member shall, so long as
any Securities of a Series are outstanding, deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Managing Member is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Managing Member also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed
with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of
this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates). All such reports, information or documents referred to in this Section 4.2 that the Company files
with the SEC via the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted to Holders at the time such
reports, information or documents are filed via the EDGAR system (or any successor system).
Section 4.3. Compliance
Certificate.
The Company and each
Guarantor (to the extent that such Guarantor is so required under the TIA) shall, so long as any Securities of a Series are
outstanding, deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officer’s
Certificate stating that a review of the activities of the Guarantor, 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 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 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 the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company and the Guarantors
covenant (to the extent that they may lawfully do so) that they 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 Company and the Guarantors (to the extent they may
lawfully do so) hereby expressly waive all benefit or advantage of any such law and covenants that they 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 has been enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the
Company is the surviving entity or the successor person (if other than the Company) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes by supplemental indenture the Company’s
obligations on the Securities and under this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing.
The 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 each stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any
Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Entity Substituted.
Upon any consolidation or merger,
or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor entity formed by such consolidation or into or with which the 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 Company under this
Indenture with the same effect as if such successor entity had been named as the Company herein; provided, however, that
the predecessor 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.
Section 5.3.
Managing Member May Consolidate on Certain Terms.
Nothing
contained in this Indenture or in the Securities shall prevent any consolidation or merger of the Managing Member with or into any other
person or persons (whether or not affiliated with the Managing Member), or successive consolidations or mergers in which either the Managing
Member will be the continuing entity or the Managing Member or its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or lease of all or substantially all of the property of the Managing Member, to any other person (whether
or not affiliated with the Managing Member); provided, however, that the following conditions are met:
(a)
the Managing Member shall be the continuing entity, or the successor entity (if other than the Managing Member) formed by or resulting
from any consolidation or merger or which shall have received the transfer of assets shall expressly assume the obligations of the Managing
Member under the Guarantee and the due and punctual performance and observance of all of the covenants and conditions in this Indenture;
and
(b)
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing.
The
Managing Member 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 Managing Member may consolidate with, merge into or transfer all or part of its properties to the Managing
Member. Neither an Officer’s Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.4.
Managing Member Successor to Be Substituted.
Upon
any consolidation or merger or any sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the
Managing Member to any person in accordance with Section 5.3, the successor person formed by such consolidation or into which the Managing
Member is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Managing Member under this Indenture with the same effect as if such successor person had been named as
the Managing Member herein, and thereafter, the predecessor person shall be released from all obligations and covenants under this Indenture;
provided, however, that the predecessor the Managing Member shall not be relieved from the obligation, if any, to guarantee the payment
of the principal of and interest on the Securities except in the case of a sale of all or substantially all of the Managing Member’s
assets in a transaction that is subject to, and that complies with the provisions of, Section 5.3 hereof.
Section 5.5.
DOC Guarantors May Consolidate on Certain Terms.
Each
of the DOC Guarantors may consolidate with or merge with or into, or sell, assign convey, transfer or lease all or substantially all of
such DOC Guarantor’s respective property and assets to, any successor person; provided, however, that the following conditions are
met:
(a) such
DOC Guarantor (i) shall be the continuing entity, or the successor entity (if other than such DOC Guarantor) formed by or
resulting from any consolidation or merger or which shall have received the sale, assignment, conveyance, transfer or lease of
assets and property, (ii) shall be a corporation, partnership, trust or other entity organized and validly existing under the
laws of any U.S. domestic jurisdiction and (iii) shall expressly assume the obligations of such DOC Guarantor under the
Guarantee and punctual performance and observance of all of the covenants and conditions in this Indenture; provided, that the
foregoing requirement will not apply (x) upon the sale or other disposition (including by way of consolidation or merger), in
one transaction or a series of related transactions, of a majority of the total voting power of the capital stock or other interests
of the respective DOC Guarantor (other than to the Company or any Affiliate of the Company) or (y) upon the sale or disposition
of all or substantially all the property of the respective DOC Guarantor (other than to any Affiliate of the Company); and
(b) immediately
after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing.
Such DOC Guarantor 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 each stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary of each DOC Guarantor may
consolidate with, merge into or transfer all or part of its properties to such DOC Guarantor. Neither an Officer’s Certificate nor
an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.6. DOC
Guarantors Successor to Be Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of such DOC Guarantor in accordance with Section 5.5, the successor entity
formed by such consolidation or into or with which such DOC Guarantor 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, such DOC Guarantor under this Indenture with
the same effect as if such successor entity had been named as such DOC Guarantor herein; provided, however, that the predecessor
person 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 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);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the performance or breach of any covenant or warranty of the Company in the Securities of that Series or 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 60 days
after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders
of not less than 25% in 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;
(d) the
Company or any Guarantor pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(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;
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company or any Guarantor in an involuntary case,
(ii) appoints
a Custodian of the Company, any Guarantor or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company or any Guarantor,
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.
The Company will provide the
Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event
of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company
is taking or proposes to take in respect thereof.
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 25% 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 Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or such 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 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.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The 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,
(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, if any, when and as due by the terms of a Security,
then, the Company and the Guarantors 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 compensation, reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company or the Guarantors
fail 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 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 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, subject to Article VII hereof, 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 Company or any other obligor upon the Securities or the property of the 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 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 or, if the Securities of such Series are Discount Securities, such amounts
as may be due and payable with respect to such Securities pursuant to an acceleration in accordance with Section 6.2, 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 compensation, reasonable 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 such payments shall be made directly to the Holders, to pay to the Trustee any amount due it for
the compensation, reasonable 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.
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 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 not less than 25% 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.
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 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 7.1, 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
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity 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, by written notice to the Trustee and the Company, 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 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, and no implied covenants or obligations
will be read into this Indenture against the Trustee.
(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.
(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 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 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 in its satisfaction.
(h) The
Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee when acting in any other capacity hereunder shall
be entitled to the protections and immunities as are set forth in this Article VII.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities under this Indenture.
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 or an Opinion of Counsel or both. 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 or Opinion
of Counsel.
(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.
(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 in good faith 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 satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(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 a Responsible Officer 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.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) The
Trustee will not be required to give any bond or surety in respect of the execution of this Indenture or otherwise.
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 Company or an Affiliate of the 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. The Trustee shall not be accountable for the Company’s use of
the proceeds from the Securities and shall not be responsible for any statement in the Securities other than its certificate of 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 send to each Holder of the Securities of that Series, in the manner set forth in Section 10.2,
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 Holders of that Series. The Trustee will not be deemed
to have notice or be charged with knowledge of any Default or Event of Default unless written notice thereof has been received by a Responsible
Officer, and such notice references the applicable Series of Securities and this Indenture and states on its face that a Default
or Event of Default has occurred.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days after each [[
] commencing [ ], [ ]], the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the register kept by
the Registrar, a brief report dated as of such date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its mailing to Holders of any Series shall be filed with the SEC and each national securities exchange on which the Securities
of that Series are listed. The 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 Company shall pay to the
Trustee from time to time compensation for its services as the 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 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.
The Company shall indemnify
each of the Trustee and any predecessor Trustee (including for 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 Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The 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, as determined by a final decision of a court of competent jurisdiction.
To secure the 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 and the resignation or removal of the Trustee.
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 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 Company. The 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) 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 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 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 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.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the 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
send a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the 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.
Any organization or entity into
which the Trustee may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity
shall be otherwise qualified and eligible under Section 7.10, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 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 § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject
to TIA § 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, 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 by reason of sending a notice of redemption or otherwise,
(2) will
become due and payable at their Stated Maturity within one year,
(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 Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the 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 an amount of money or U.S.
Government Obligations, which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including
mandatory sinking fund payments or analogous payments) of and interest on all the Securities of such Series on the dates such installments
of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, (x) the obligations of the Company to the Trustee under Section 7.7, (y) 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,
and (z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith
shall survive.
If the 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 and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 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 8.1, 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 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 Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee (which indemnity shall survive termination of this Indenture) against any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections
8.1, 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 Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 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.
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 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 Company, shall, upon receipt of a 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, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall
have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds 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 principal or interest 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 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 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
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the
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 United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be
subject to United States 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;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
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 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, 4.4 and 5.1 and,
unless otherwise specified therein, 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 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, but, except as specified above, the remainder of this Indenture and such Securities will
be unaffected thereby; provided that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably 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 (including mandatory sinking fund payments or analogous
payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest 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 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 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
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Securities of such
Series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to United States 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 and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
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 Company.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the 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 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 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 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 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 Holder:
(a) to
cure any ambiguity, 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 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 Holder;
(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;
(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.
Subject to
Section 9.3, the 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 Holders of each such Series. Except as
provided in Section 6.13, and subject to Section 9.3, 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 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 Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send 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
Holder 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 then 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 Sections 6.8, 6.13 or 9.3 (this sentence);
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the 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 Holder of each Series affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (i) of Section 9.3 or requires the consent of each Holder affected, as set forth in a supplemental
indenture or Officer’s Certificate in respect to a particular Series of Securities. 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 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 second
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 Company or the Trustee may,
but shall not be obligated to, place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.3 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, upon request, an Officer’s Certificate and an Opinion of Counsel complying
with Sections 10.4 and 10.5 and (subject to Section 7.1 and 7.2) shall be fully protected in relying upon such Officer’s Certificate
and/or Opinion of Counsel. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s Certificate and
Opinion of Counsel, except that the Trustee need not sign any supplemental indenture that adversely affects its rights, duties, liabilities
or immunities under this Indenture.
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 Company, any Guarantor or the Trustee to the other, or by a Holder to the Company, and Guarantor or the Trustee, is duly given
if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), email or overnight
air courier guaranteeing next day delivery, to the others’ address:
if to the Company or any Guarantor:
Healthpeak OP, LLC
4600 South Syracuse Street, Suite 500,
Denver, Colorado 80237
Attention: General Counsel
Telephone: 720.428.5050
with a copy to:
Latham & Watkins
LLP
10250 Constellation Blvd.,
Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Telephone: 213.891.7339
if to the Trustee:
U.S. Bank Trust Company, National Association
633 West 5th Street, 24th Floor
Los Angeles, California 90071
Attention: B. Scarbrough (Healthpeak Notes Administrator)
Telephone: 213-615-6047
with a copy to:
Shipman & Goodwin LLP
One Constitution Plaza
Hartford, Connecticut 06103
Attention: Marie Pollio
Telephone: 860-251-5561
The 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 Holder shall be sent electronically or by first-class mail or overnight air courier to his, her or its address shown on the register
kept by the Registrar, in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Holder of any
Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company sends a notice
or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The
Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission
(including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee)
shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and
electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
communication, and the risk of interception or misuse by third parties.
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.
Holders of any Series may
communicate pursuant to TIA § 312(b) with other Holders 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 Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the 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 § 314(a)(4)) shall comply with the provisions of TIA § 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, such person has made such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(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 Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal
Holidays.
If a payment date for any payment
made under this Indenture is not a Business Day, payment may be made on the next succeeding Business Day, and no interest shall accrue
for the intervening period.
Section 10.8. No
Recourse Against Others.
A director, officer, employee or securityholder (past, present or future),
as such, of the Company or any Guarantor shall not have any liability for any obligations of the 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 Holder 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 electronic format (e.g., “.pdf” or “.tif”) 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 electronic format (e.g., “.pdf” or “.tif”)
shall be deemed to be their original signatures for all purposes.
Unless otherwise provided herein
or in any other Securities, the words “execute”, “execution”, “signed” and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any Securities or any of
the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
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.
THE
COMPANY, THE GUARANTORS, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, 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,
THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding
arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The Company, the Guarantors, the Trustee and the Holders (by their acceptance
of the Securities) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or
other proceeding has been brought in an inconvenient forum.
Section 10.11. Successors.
All agreements of the 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 10.12. No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
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, 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 made by the Company 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 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.
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 Company and each Guarantor
agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of the principal of or 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.
Section 10.17. Force
Majeure.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes, pandemics, epidemics or other public health emergencies, or acts of God,
and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood
that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
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 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 Company or redeemed either at the election of the
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 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 Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
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 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 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 Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2, and the Company shall send or cause to be sent a notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with
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 supplemental indenture or an Officer’s Certificate
with respect to such Series.
(b) For
value received, by execution of this Indenture, 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, premium, if any,
and interest on each Series of Securities for which such Guarantor has executed a supplemental indenture or an Officer’s Certificate
with respect to such Series and all other amounts due and payable under this Indenture and the Securities of such Series by
the Company, when and as such principal, premium, if any, interest, and such other amounts as 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 12.2.
(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 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 Company or any other Guarantor.
(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 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 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 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. Limitation
on Guarantors’ Liability.
Each Guarantor by its acceptance
hereof and each Holder of Security and the Trustee 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 and the Trustee 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 12.3. 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 12.3. 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 Company, of all of the 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 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.
(b) In
addition, the Guarantees of the DOC Guarantors shall be automatically and unconditionally released: (i) upon the sale or other disposition
(including by way of consolidation or merger), in one transaction or a series of related transactions, of a majority of the total voting
power of the capital stock or other interests of the respective DOC Guarantor (other than to the Company or any Affiliate of the Company);
(ii) upon the sale or disposition of all or substantially all the property of the respective DOC Guarantor (other than to any Affiliate
of the Company); or (iii) on the date and time at which none of the DOC DR, LLC’s 4.300% Senior Notes due 2027, 3.950% Senior
Notes due 2028, and 2.625% Senior Notes due 2031 remain outstanding. The Issuer will give written notice as promptly as practicable to
the Trustee of the automatic release of any DOC Guarantee pursuant to this Section 12.3.
(c) Upon
receipt of a written request of the Company accompanied by an Officer’s Certificate or Opinion of Counsel to the effect that any
Guarantor is entitled to be released from the Guarantee in accordance with the provisions of this Indenture, the Trustee shall deliver
instruments reasonably requested by the Company or such Guarantor evidencing the release of such Guarantor from the Guarantee, such instruments
to be prepared by the Company or such Guarantor and delivered to the Trustee. 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]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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HEALTHPEAK OP, LLC |
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By: Healthpeak Properties, Inc., its managing member. |
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By: |
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Name: |
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Its: |
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HEALTHPEAK PROPERTIES, INC., as Guarantor |
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By: |
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Name: |
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Its: |
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DOC DR HOLDCO, LLC, as Guarantor |
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By: Healthpeak OP, LLC, its Sole Member |
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By: Healthpeak Properties, Inc., its Managing Member |
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By: |
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Name: |
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Its: |
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DOC DR, LLC, as Guarantor |
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By: DOC DR Holdco, LLC, a Maryland limited liability company, its Managing Member |
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By: Healthpeak OP, LLC, its Sole Member |
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By: Healthpeak Properties, Inc., its Managing Member |
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By: |
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U.S. Bank Trust Company, National Association, as Trustee |
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Exhibit 5.1
February 5, 2025
Healthpeak Properties, Inc.
Healthpeak OP, LLC
4600 South Syracuse Street
Suite 500
Denver, Colorado 80237
| Re: | Healthpeak Properties, Inc., a Maryland corporation (the "Corporation"), and Healthpeak
OP, LLC, a Maryland limited liability company of which the Corporation is the managing member (the "Operating Company") –
Post-Effective Amendment No. 1 to Registration Statement on Form S-3 (File Nos. 333-276954 and 333-276954-01) (the "Registration
Statement") pertaining to an indeterminate aggregate initial offering price or number of (i) shares of common stock, par value
$1.00 per share (the "Common Stock"), of the Corporation; (ii) shares of preferred stock, par value $1.00 per share (the
"Preferred Stock"), of the Corporation; (iii) fractional shares of Preferred Stock represented by depositary shares ("Depositary
Shares"); (iv) warrants ("Warrants") to purchase shares of Common Stock, shares of Preferred Stock, Corporation Debt
Securities or other securities; (v) debt securities of the Corporation (the "Corporation Debt Securities"); (vi) debt
securities of the Operating Company (the "OP Debt Securities"); (vii) guarantees by the Corporation of OP Debt Securities
(the "Corporation Guarantees"); (viii) guarantees by the Operating Company of Corporation Debt Securities (the "OP
Guarantees"); and (ix) guarantees by DOC DR Holdco, LLC, a Maryland limited liability company of which the Operating Company
is the sole member ("DOC DR Holdco"), and by DOC DR, LLC, a Maryland limited liability company of which DOC DR Holdco is the
managing member ("DOC DR" and together with DOC DR Holdco, the "Guarantor Registrants"), of Corporation Debt Securities
and/or OP Debt Securities (the "Guarantor Registrant Guarantees") |
Ladies and Gentlemen:
We have acted as Maryland corporate
counsel to the Corporation and Maryland limited liability company counsel to the Operating Company and the Guarantor Registrants in connection
with (a) the registration of the shares of Common Stock, shares of Preferred Stock, Depositary Shares, Corporation Debt Securities,
Warrants and Corporation Guarantees (collectively, the "Corporation Securities"), (b) the registration of the OP Debt Securities
and OP Guarantees (collectively, the "OP Securities"), and (c) the registration of the Guarantor Registrant Guarantees
(together with the Corporation Securities and the OP Securities, collectively, the "Securities"), under the Securities Act of
1933, as amended (the "Act"), by the Corporation, the Operating Company and the Guarantor Registrants, as applicable, pursuant
to the Registration Statement, which was originally filed with the Securities and Exchange Commission (the "Commission") on
or about February 8, 2024, and any further amendments thereto, if any are to be filed with the Commission subsequent to the date
hereof. You have requested our opinion with respect to the matters set forth below.
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 2
In our capacity as Maryland
corporate counsel to the Corporation and Maryland limited liability company counsel to the Operating Company and for the purposes of this
opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively,
the "Documents"):
| (i) | the corporate charter of the Corporation (the "Charter") consisting of Articles of Incorporation
filed with the State Department of Assessments and Taxation of Maryland (the "Department") on December 13, 2022, Articles
of Amendment and Restatement filed with the Department on February 9, 2023, Articles of Amendment filed with the Department on February 9,
2023 and Articles of Amendment filed with the Department on February 29, 2024; |
| (ii) | the Amended and Restated Bylaws of the Corporation, dated as of February 10, 2023, as amended (the
"Bylaws"); |
| (iii) | the Articles of Conversion of Healthpeak Properties Interim, Inc. (formerly known as Healthpeak Properties, Inc.)
filed with the Department on February 9, 2023, and the Articles of Organization of the Operating Company filed with the Department
on February 9, 2023 (the "Operating Company Articles of Organization"); |
| (iv) | the Operating Agreement of the Operating Company, dated as of February 10, 2023 (the "Operating
Company Operating Agreement"); |
| (v) | the Articles of Organization of DOC DR Holdco filed with the Department on October 26, 2023, the
Articles of Amendment filed with the Department on December 22, 2023 and the Articles of Merger filed with the Department on February 29,
2024 to which are attached the Amended and Restated Articles of Organization (the "DOC DR Holdco Articles of Organization"); |
| (vi) | the Operating Agreement of DOC DR Holdco, dated as of October 26, 2023, as amended by the First Amendment
to Operating Agreement of DOC DR Holdco, dated as of December 22, 2023, as amended and restated by the Amended and Restated Operating
Agreement of DOC DR Holdco effective as of March 1, 2024, as further amended and restated by the Second Amended and Restated Operating
Agreement of DOC DR Holdco executed as of November 22, 2024 (the "DOC DR Holdco Operating Agreement"); |
| (vii) | the Articles of Organization of DOC DR filed with the Department on October 26, 2023, the Articles
of Amendment of DOC DR filed with the Department on December 22, 2023 and the Articles of Merger filed with the Department on February 29,
2024 (the "DOC DR Articles of Organization"); |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 3
| (viii) | the Operating Agreement of DOC DR, dated as of October 26, 2023, as amended by the First Amendment
to Operating Agreement of DOC DR, dated as of December 22, 2023, as amended and restated by the Amended and Restated Operating Agreement
of DOC DR effective as of March 1, 2024 (the "DOC DR Operating Agreement"); |
| (ix) | certain resolutions (the "Directors' Resolutions") adopted by the Board of Directors of the
Corporation (the "Board of Directors") with respect to the Registration Statement; |
| (x) | a certificate of one or more officers of the Corporation, dated as of a recent date (the "Officer's
Certificate"), to the effect that, among other things, the Charter, the Bylaws, the Operating Company Articles of Organization, the
Operating Company Operating Agreement, the DOC DR Holdco Articles of Organization, the DOC DR Holdco Operating Agreement, the DOC DR Articles
of Organization, the DOC DR Operating Agreement and the Directors' Resolutions are true, correct and complete, have not been rescinded
or modified and are in full force and effect on the date of the Officer's Certificate; |
| (xi) | the Registration Statement and the related form of prospectus included therein (the "Prospectus"),
in substantially the form filed or to be filed with the Commission pursuant to the Act; |
| (xii) | a status certificate of the Department, dated as of a recent date, to the effect that the Corporation
is duly incorporated and existing under the laws of the State of Maryland; |
| (xiii) | a status certificate of the Department, dated as of a recent date, to the effect that the Operating Company
is duly formed and existing under the laws of the State of Maryland; |
| (xiv) | a status certificate of the Department, dated as of a recent date, to the effect that DOC DR Holdco is
duly formed and existing under the laws of the State of Maryland; |
| (xv) | a status certificate of the Department, dated as of a recent date, to the effect that DOC DR is duly formed
and existing under the laws of the State of Maryland; and |
| (xvi) | such other laws, records, documents, certificates, opinions and instruments as we have deemed necessary
to render this opinion, subject to the limitations, assumptions and qualifications noted below. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 4
In reaching the opinions set
forth below, we have assumed the following:
| (a) | each person executing any instrument, document or agreement on behalf of any party (other than the Corporation,
the Operating Company and the Guarantor Registrants) is duly authorized to do so; |
| (b) | each natural person executing any instrument, document or agreement is legally competent to do so; |
| (c) | any of the Documents submitted to us as originals are authentic; the form and content of any Documents
submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such documents
as executed and delivered; any of the Documents submitted to us as certified, facsimile or photostatic copies conform to the original
Documents; all signatures on all of the Documents are genuine; all public records reviewed or relied upon by us or on our behalf are true
and complete; there has been no modification of, or amendment to, any of the Documents, and there has been no waiver of any provision
of any of the Documents by action or omission of the parties or otherwise; |
| (d) | the Officer's Certificate and all other certificates submitted to us are true and correct both when made
and as of the date hereof; |
| (e) | the resolutions to be adopted subsequent to the date hereof, and the actions to be taken by the Board
of Directors subsequent to the date hereof, including, but not limited to, the adoption of all resolutions and the taking of all actions
necessary to authorize the issuance and sale (and execution and delivery, if applicable) of the Corporation Securities by the Corporation,
the OP Debt Securities by the Operating Company and the Guarantor Registrant Guarantees by the Guarantor Registrants in accordance with
the procedures set forth in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 below, will occur at duly called meetings at which a quorum of the
incumbent directors of the Corporation is present and acting throughout, or by unanimous written consent of all incumbent directors, all
in accordance with the Charter and Bylaws of the Corporation and applicable law; |
| (f) | the number of shares of Preferred Stock of each series and the number of shares of Common Stock to be
offered and sold subsequent to the date hereof as Corporation Securities under the Registration Statement, together with the number of
shares of Preferred Stock of such series and the number of shares of Common Stock issuable upon the conversion or exchange (or exercise
in the case of Warrants) of any Securities offered and sold subsequent to the date hereof, and the number of shares of Preferred Stock
of such series represented by Depositary Shares to be offered and sold subsequent to the date hereof, will not, in the aggregate, exceed
the number of shares of Preferred Stock of such series, and the number of shares of Common Stock, respectively, authorized in the Charter
of the Corporation, less the number of shares of Preferred Stock of such series and the number of shares of Common Stock, respectively,
authorized and reserved for issuance and issued and outstanding on the date subsequent to the date hereof on which the Securities are
authorized, the date subsequent to the date hereof on which the Securities are issued and delivered, the date subsequent to the date hereof
on which any Securities are converted into, or exchanged or exercised for, shares of Common Stock or shares of Preferred Stock of such
series, respectively, and the date subsequent to the date hereof on which shares of Preferred Stock of such series and shares of Common
Stock, respectively, are issued pursuant to the conversion, exchange or exercise of such Securities; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 5
| (g) | none of the terms of any of the Securities or any agreements related thereto to be established subsequent
to the date hereof, nor the issuance and delivery of any such Securities containing such terms established subsequent to the date hereof,
nor the compliance by the Corporation, the Operating Company or the Guarantor Registrants with the terms of any such Securities or agreements
established subsequent to the date hereof, nor the form of certificate, receipt or other instrument or document evidencing any such Securities
approved subsequent to the date hereof, will violate any applicable law or will conflict with, or result in a breach or violation of,
the Charter or Bylaws, the Operating Company Articles of Organization or Operating Company Operating Agreement, the DOC DR Holdco Articles
of Organization or DOC DR Holdco Operating Agreement, the DOC DR Articles of Organization or DOC DR Operating Agreement, any instrument
or agreement to which the Corporation, the Operating Company or the Guarantor Registrants is a party or by which the Corporation, the
Operating Company or the Guarantor Registrants is bound or any order or decree of any court, administrative or governmental body having
jurisdiction over the Corporation, the Operating Company or the Guarantor Registrants; |
| (h) | the form of certificate, receipt or other instrument or document representing the Securities approved
subsequent to the date hereof will conform in all respects to the requirements applicable under Maryland law; |
| (i) | none of the Corporation Securities to be offered and sold subsequent to the date hereof, and none of the
shares of Preferred Stock or shares of Common Stock or other securities issuable upon the conversion or exchange (or exercise in the case
of Warrants) of any Securities, will be issued in violation of the provisions of the Charter of the Corporation relating to business combinations
or the provisions of the Charter of the Corporation imposing restrictions on ownership and transfer of shares of stock of the Corporation; |
| (j) | none of the Corporation Securities to be offered and sold subsequent to the date hereof, and none of the
shares of Preferred Stock or shares of Common Stock or other securities issuable upon the conversion or exchange (or exercise in the case
of Warrants) of any Securities, will be issued and sold to an Interested Stockholder of the Corporation or an Affiliate thereof, all as
defined in Subtitle 6 of Title 3 of the Maryland General Corporation Law (the "MGCL"), in violation of Section 3-602 of
the MGCL; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 6
| (k) | all Corporation Debt Securities to be offered and sold subsequent to the date hereof will be issued under
a valid and legally binding indenture or other similar instrument, enforceable against the parties thereto in accordance with its terms,
that conforms to the description thereof set forth in the Prospectus or related prospectus supplement; all OP Debt Securities to be offered
and sold subsequent to the date hereof will be issued under a valid and legally binding indenture or other similar instrument, enforceable
against the parties thereto in accordance with its terms, that conforms to the description thereof set forth in the Prospectus or related
prospectus supplement; all Depositary Shares to be offered and sold subsequent to the date hereof will be issued under a valid and legally
binding depositary agreement, enforceable against the parties thereto in accordance with its terms, that conforms to the description thereof
set forth in the Prospectus or related prospectus supplement; and all Warrants to be offered and sold subsequent to the date hereof will
be issued under a valid and legally binding warrant agreement, enforceable against the parties thereto in accordance with its terms, that
conforms to the description thereof set forth in the Prospectus or related prospectus supplement; and |
| (l) | (i) prior to or contemporaneous with the
authorization, execution and delivery of any Corporation Guarantees by the Corporation issued, executed and delivered subsequent to the
date hereof, the OP Debt Securities to which such Corporation Guarantees relate will have been duly issued, executed and delivered by,
and will be the valid and legally binding obligation of, the Operating Company; (ii) prior to or contemporaneous with the authorization,
execution and delivery of any OP Guarantees by the Operating Company issued, executed and delivered subsequent to the date hereof, the
Corporation Debt Securities to which such OP Guarantees relate will have been duly issued, executed and delivered by, and will be the
valid and legally binding obligation of, the Corporation; and (iii) prior to or contemporaneous with the authorization, execution
and delivery of any Guarantor Registrant Guarantees by the Guarantor Registrants issued, executed and delivered subsequent to the date
hereof, the Corporation Debt Securities and/or the OP Debt Securities to which such Guarantor Registrant Guarantees relate will have been
duly issued, executed and delivered by, and will be the valid and legally binding obligation of, the Corporation or the Operating Company,
as applicable. |
Based on the foregoing, and
subject to the assumptions and qualifications set forth herein, it is our opinion that:
| 1. | Upon due authorization by the Board of Directors of a designated number of shares of Common Stock for
issuance at a minimum price or value of consideration to be set by the Board of Directors, all necessary corporate action on the part
of the Corporation will have been taken to authorize the issuance and sale of such shares of Common Stock, and when such shares of Common
Stock are issued and delivered against payment of the consideration therefor as set by the Board of Directors, such shares of Common Stock
will be validly issued, fully paid and non-assessable. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 7
| 2. | Upon: (a) designation by the Board of Directors of one or more series of Preferred Stock to distinguish
each such series from any other outstanding series of Preferred Stock; (b) setting by the Board of Directors of the number of shares
of Preferred Stock to be included in such series; (c) establishment by the Board of Directors of the preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of such
series of Preferred Stock; (d) filing by the Corporation with the Department of articles supplementary setting forth a description
of such series of Preferred Stock, including the preferences, conversion and other rights, voting powers, restrictions, limitations as
to dividends, qualifications and terms and conditions of redemption as set by the Board of Directors and a statement that such series
of the Preferred Stock has been classified by the Board of Directors under the authority contained in the Charter, and the acceptance
for record by the Department of such articles supplementary; (e) due authorization by the Board of Directors of a designated number
of shares of such series of Preferred Stock for issuance at a minimum price or value of consideration to be set by the Board of Directors,
and (f) reservation and due authorization by the Board of Directors of any shares of any other series of Preferred Stock and/or any
shares of Common Stock issuable upon conversion of such series of Preferred Stock in accordance with the procedures set forth in this
Paragraph 2 and in Paragraph 1 above, respectively, and/or due authorization by the Board of Directors of any other securities of the
Corporation issuable upon conversion of such series of Preferred Stock in accordance with resolutions to be adopted subsequent to the
date hereof, and/or actions to be taken subsequent to the date hereof, by the Board of Directors, at a minimum price or value of consideration
to be set by the Board of Directors, all necessary corporate action on the part of the Corporation will have been taken to authorize the
issuance and sale of the shares of such series of Preferred Stock, and when such shares of such series of Preferred Stock are issued and
delivered against payment of the consideration therefor as set by the Board of Directors, such shares of such series of Preferred Stock
will be validly issued, fully paid and non-assessable. |
| 3. | The Corporation has the corporate power to enter into depositary agreements, and upon completion of the
procedures set forth in paragraph 2 above for the issuance of shares of any series of Preferred Stock, and approval of a depositary agreement
and due authorization by the Board of Directors of the delivery of Depositary Shares pursuant to such depositary agreement, due execution
of such depositary agreement on behalf of the Corporation, and compliance with the conditions established by the Board of Directors for
the delivery of the Depositary Shares, such Depositary Shares may be delivered by or on behalf of the Corporation, and such series of
Preferred Stock represented by the Depositary Shares will, upon issuance and delivery against payment of the consideration therefor as
set by the Board of Directors, be validly issued, fully paid and non-assessable. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 8
| 4. | The Corporation has the corporate power to create the obligation to be evidenced by the Corporation Debt
Securities, and upon: (a) designation and titling by the Board of Directors of the Corporation Debt Securities; (b) establishment
by the Board of Directors of the terms, conditions and provisions of any Corporation Debt Securities; (c) establishment by the Board
of Directors of the aggregate principal amount of any such Corporation Debt Securities and any limit on such aggregate principal amount;
(d) due authorization by the Board of Directors of the execution and delivery of one or more indentures or similar instruments pursuant
to which such Corporation Debt Securities will be issued, each dated as of a date prior to the issuance of the Corporation Debt Securities
to which it relates; (e) due authorization by the Board of Directors of such Corporation Debt Securities for issuance at a minimum
price or value of consideration to be set by the Board of Directors; and (f) reservation and due authorization by the Board of Directors
of the issuance of any shares of Common Stock and/or shares of any series of Preferred Stock issuable upon conversion of the Corporation
Debt Securities in accordance with the procedures set forth in Paragraphs 1 and 2 above, respectively; due authorization by the Board
of Directors of any Corporation Debt Securities of another series issuable upon conversion of the Corporation Debt Securities in accordance
with the procedures set forth in this Paragraph 4; and/or the due authorization by the Board of Directors of any other securities of the
Corporation issuable upon conversion of the Corporation Debt Securities in accordance with resolutions to be adopted subsequent to the
date hereof, and/or actions to be taken subsequent to the date hereof, by the Board of Directors, at a minimum price or value of consideration
to be set by the Board of Directors, all necessary corporate action on the part of the Corporation will have been taken to authorize such
Corporation Debt Securities. |
| 5. | The Corporation has the corporate power to enter into warrant agreements, and upon: (a) designation
and titling by the Board of Directors of the Warrants; (b) due authorization by the Board of Directors of the form, terms, execution
and delivery by the Corporation of any warrant agreement or other instrument relating to the Warrants; (c) setting by the Board of
Directors of the number of Warrants to be issued; (d) establishment by the Board of Directors of the terms, conditions and provisions
of the Warrants; (e) due authorization by the Board of Directors of the Warrants for issuance at a minimum price or value of consideration
to be set by the Board of Directors; and (f) reservation and due authorization by the Board of Directors of the issuance of any shares
of Common Stock and/or shares of any series of Preferred Stock issuable upon exercise of the Warrants in accordance with the procedures
set forth in Paragraphs 1 and 2 above, respectively; due authorization by the Board of Directors of any Corporation Debt Securities issuable
upon exercise of the Warrants in accordance with the procedures set forth in Paragraph 4 above; and/or due authorization by the Board
of Directors of any other securities of the Corporation issuable upon exercise of the Warrants in accordance with resolutions to be adopted
subsequent to the date hereof, and/or actions to be taken subsequent to the date hereof, by the Board of Directors, at a minimum price
or value of consideration to be set by the Board of Directors, all necessary corporate action on the part of the Corporation will have
been taken to authorize such Warrants. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 9
| 6. | The Corporation, in its capacity as managing member of the Operating Company, on behalf of the Operating
Company, has the corporate power to cause the Operating Company to create the obligation to be evidenced by the OP Debt Securities, and
the Operating Company has the limited liability company power to create the obligation to be evidenced by the OP Debt Securities, and
upon: (a) designation and titling by the Board of Directors of the OP Debt Securities; (b) establishment by the Board of Directors
of the terms, conditions and provisions of such OP Debt Securities; (c) establishment by the Board of Directors of the aggregate
principal amount of such OP Debt Securities and any limit on such aggregate principal amount; (d) due authorization by the Board
of Directors of the form, terms and conditions of one or more indentures or similar instruments pursuant to which such OP Debt Securities
will be issued, each dated as of a date prior to the issuance of such OP Debt Securities; (e) due authorization by the Board of Directors
of such OP Debt Securities for issuance at a minimum price or value of consideration as set by the Board of Directors; and (f) reservation
and due authorization for issuance by the Board of Directors of any shares of Common Stock and/or any shares of Preferred Stock issuable
upon exchange of such OP Debt Securities in accordance with the procedures set forth in Paragraphs 2 and 3 above, respectively, due authorization
by the Board of Directors of any OP Debt Securities of another series issuable upon conversion of or in exchange for such OP Debt Securities
in accordance with the procedures set forth in this Paragraph 6 and/or due authorization by the Board of Directors of any other securities
of the Corporation or the Operating Company issuable upon conversion of, or in exchange for, such OP Debt Securities in accordance with
resolutions adopted or actions taken by the Board of Directors subsequent to the date hereof at a minimum price or value of consideration
as set by the Board of Directors, all necessary corporate action on the part of the Company, in its capacity as managing member of the
Operating Company, on behalf of the Operating Company, and all necessary limited liability company action on the part of the Operating
Company, will have been taken to authorize such OP Debt Securities. |
| 7. | The Corporation has the corporate power to enter into Corporation Guarantees, and upon completion of the
procedures set forth in Paragraph 6 above for authorization of the OP Debt Securities by the Corporation, in its capacity as managing
member of the Operating Company, on behalf of the Operating Company, and due authorization and approval by the Board of Directors of the
Corporation Guarantees relating to such OP Debt Securities, and compliance with the conditions established by the Board of Directors for
delivery of such Corporation Guarantees, such Corporation Guarantees will have been duly authorized by all necessary corporate action
on the part of the Corporation and may be delivered by or on behalf of the Corporation. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 10
| 8. | The Corporation, in its capacity as managing member of the Operating Company, on behalf of the Operating
Company, has the corporate power to cause the Operating Company to enter into OP Guarantees, and the Operating Company has the limited
liability company power to enter into OP Guarantees, and upon completion of the procedures set forth in Paragraph 4 above for authorization
of the Corporation Debt Securities by the Corporation, and due authorization and approval by the Board of Directors of the Corporation,
in its capacity as managing member of the Operating Company, on behalf of the Operating Company, of the OP Guarantees relating to such
Corporation Debt Securities, and compliance with the conditions established by the Board of Directors for delivery of such OP Guarantees,
such OP Guarantees will have been duly authorized by all necessary limited liability company action on the part of the Operating Company
and may be delivered by or on behalf of the Operating Company. |
| 9. | The Corporation, in its capacity as managing member of the Operating Company, on behalf of the Operating
Company, in its capacity as sole member of DOC DR Holdco, on behalf of DOC DR Holdco, in its capacity as managing member of DOC DR, on
behalf of DOC DR, has the corporate power to cause the Guarantor Registrants to enter into Guarantor Registrant Guarantees, and the Guarantor
Registrants have the limited liability company power to enter into Guarantor Registrant Guarantees. Upon completion of the procedures
set forth in Paragraph 4 above for authorization of the Corporation Debt Securities by the Corporation and in Paragraph 6 above for authorization
of the OP Debt Securities by the Corporation, in its capacity as managing member of the Operating Company, on behalf of the Operating
Company, as applicable, and due authorization and approval by the Board of Directors of the Corporation, in its capacity as managing member
of the Operating Company, on behalf of the Operating Company, in its capacity as sole member of DOC DR Holdco, on behalf of DOC DR Holdco,
in its capacity as managing member of DOC DR, on behalf of DOC DR, of the Guarantor Registrant Guarantees relating to such Corporation
Debt Securities and/or OP Debt Securities, as applicable, and compliance with the conditions established by the Board of Directors for
delivery of such Guarantor Registrant Guarantees, such Guarantor Registrant Guarantees will have been duly authorized by all necessary
limited liability company action on the part of the Guarantor Registrants and may be delivered by or on behalf of the Guarantor Registrants. |
The foregoing opinion is limited
to the substantive laws of the State of Maryland, and we do not express any opinion herein concerning any other law. We express no opinion
as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or
as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein
would be governed by the law of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 5, 2025
Page 11
This opinion letter is issued
as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to our
attention. We assume no obligation to supplement this opinion letter if any applicable laws change after the date hereof, or if we become
aware of any facts or circumstances that now exist or that occur or arise in the future and may change the opinions expressed herein after
the date hereof.
We consent to your filing this
opinion as an exhibit to the Registration Statement and further consent to the filing of this opinion as an exhibit to the applications
to securities commissioners for the various states of the United States for registration of the Securities. We also consent to the identification
of our firm in the section of the Registration Statement entitled "Legal Matters". In giving this consent, we do not admit that
we are within the category of persons whose consent is required by Section 7 of the Act.
| |
Very
truly yours, |
| |
|
| |
/s/
Ballard Spahr LLP |
Exhibit 5.2
| |
10250 Constellation Blvd., Suite 1100 |
| |
Los Angeles, California 90067 |
| |
Tel: +1.424.653.5500 Fax: +1.424.653.5501 |
| |
www.lw.com |
| |
|
 |
FIRM / AFFILIATE OFFICES |
| Austin |
Milan |
| |
Beijing |
Munich |
| |
Boston |
New York |
| |
Brussels |
Orange County |
| |
Century City |
Paris |
| February 5, 2025 |
Chicago |
Riyadh |
| |
Dubai |
San Diego |
| |
Düsseldorf |
San Francisco |
| |
Frankfurt |
Seoul |
| Healthpeak Properties, Inc. |
Hamburg |
Silicon Valley |
| Healthpeak OP, LLC |
Hong Kong |
Singapore |
| DOC DR Holdco, LLC |
Houston |
Tel Aviv |
| DOC DR, LLC |
London |
Tokyo |
| 4600 South Syracuse Street, Suite 500 |
Los Angeles |
Washington, D.C. |
| Denver, CO 80237 |
Madrid |
|
Re: Healthpeak Properties, Inc.,
Healthpeak OP, LLC, DOC DR Holdco, LLC, DOC DR, LLC
To the addressees set forth above:
We have acted as special counsel to Healthpeak
Properties, Inc., a Maryland corporation (the “Company”), Healthpeak OP, LLC, a Maryland limited liability
company (“Healthpeak OP”), DOC DR Holdco, LLC, a Maryland limited liability company (“DOC DR Holdco”),
and DOC DR, LLC, a Maryland limited liability company (“DOC DR”), in connection with the filing on the date
hereof with the Securities and Exchange Commission (the “Commission”) of Post-Effective Amendment No. 1
to the registration statement on Form S-3 (Registration Nos. 333-276954, 333-276954-01, 333-276954-02 and 333-276954-03) (as amended,
the “Registration Statement”), including a base prospectus (the “Base Prospectus”),
which provides that the Base Prospectus will be supplemented by one or more prospectus supplements (each such prospectus supplement, together
with the Base Prospectus, a “Prospectus”), under the Securities Act of 1933, as amended (the “Act”),
relating to the registration for issue and sale (i) by Healthpeak OP of one or more series of Healthpeak OP’s debt securities
(the “Healthpeak OP Debt Securities”) to be issued pursuant to (A) an indenture incorporated by reference
as an exhibit to the Registration Statement by and among Healthpeak OP, as issuer, the Company, DOC DR Holdco and DOC DR, as guarantors
(in such capacity, the “OP Guarantors”), and U.S. Bank Trust Company, National Association, as trustee, and
one or more board resolutions, supplements thereto or officer’s certificates thereunder (such indenture, together with the applicable
board resolution, supplement or officer’s certificate pertaining to the applicable series of Healthpeak OP Debt Securities, the
“US Bank Healthpeak OP Indenture”) and/or (B) an indenture incorporated by reference as an exhibit to the
Registration Statement by and among Healthpeak OP, as issuer, the Company, DOC DR Holdco and DOC DR, as guarantors, and The Bank of New
York Mellon Trust Company, N.A., as trustee, and one or more board resolutions, supplements thereto or officer’s certificates thereunder
(such indenture, together with the applicable board resolution, supplement or officer’s certificate pertaining to the applicable
series of Healthpeak OP Debt Securities, the “BNYM Healthpeak OP Indenture” and, together with the US Bank Healthpeak
OP Indenture, the “Applicable Healthpeak OP Indenture”), (ii) by the Company of guarantees of the Healthpeak
OP Debt Securities (the “Company OP Guarantees”) pursuant to the Applicable Healthpeak OP Indenture, (iii) by
DOC DR Holdco of guarantees of the Healthpeak OP Debt Securities (the “DOC DR Holdco OP Guarantees”) pursuant
to the Applicable Healthpeak OP Indenture, (iv) by DOC DR of guarantees of the Healthpeak OP Debt Securities (the “DOC
DR OP Guarantees” and, together with the Company OP Guarantees and the DOC DR Holdco OP Guarantees, the “OP
Guarantees”) pursuant to the Applicable Healthpeak OP Indenture, (v) by the Company of one or more series of the Company’s
debt securities (the “Company Debt Securities” and, together with the Healthpeak OP Debt Securities, the “Debt
Securities”) to be issued pursuant to an indenture incorporated by reference as an exhibit to the Registration Statement
by and between the Company, as issuer, Healthpeak OP, DOC DR Holdco and DOC DR, as guarantors (in such capacity, the “Company
Guarantors”), and U.S. Bank Trust Company, National Association, as trustee, and one or more board resolutions, supplements
thereto or officer’s certificates thereunder (such indenture, together with the applicable board resolution, supplement or officer’s
certificate pertaining to the applicable series of Company Debt Securities, the “Company Indenture”), (vi) by
Healthpeak OP of guarantees of the Company Debt Securities (the “Healthpeak OP Company Guarantees”) issued pursuant
to the Company Indenture, (vii) by DOC DR Holdco of guarantees of the Company Debt Securities (the “DOC DR Holdco Company
Guarantees”) issued pursuant to the Company Indenture, (viii) by DOC DR of guarantees of the Company Debt Securities
(the “DOC DR Company Guarantees” and, together with the Healthpeak OP Company Guarantees and the DOC DR Holdco
Company Guarantees, the “Company Guarantees”) issued pursuant to the Company Indenture, (ix) by the Company
of shares of the Company’s common stock, $1.00 par value per share (“Common Stock”), (x) by the Company
of shares of one or more series of the Company’s preferred stock, $1.00 par value per share (“Preferred Stock”),
(xi) by the Company of shares of Preferred Stock represented by depositary shares (“Depositary Shares”)
and (xii) by the Company of warrants to purchase Company Debt Securities, shares of Common Stock, shares of Preferred Stock or other
securities of the Company (“Warrants”).
This opinion is being furnished in connection with
the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining
to the contents of the Registration Statement or related applicable Prospectus, other than as expressly stated herein with respect to
the issue of the relevant securities.
As such counsel, we have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company, Healthpeak OP and others as to factual matters without having independently verified
such factual matters. We are opining herein as to the internal laws of the State of New York, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to any matters of municipal law or the laws
of any local agencies within any state. Various issues concerning Maryland law are addressed in the opinion of Ballard Spahr LLP, which
has been separately provided to you. We express no opinion with respect to those matters herein, and to the extent elements of those opinions
are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof:
1. When
the Applicable Healthpeak OP Indenture has been duly authorized, executed and delivered by all necessary limited liability company action
of Healthpeak OP, and when the specific terms of a particular series of Healthpeak OP Debt Securities have been duly established in accordance
with the terms of the Applicable Healthpeak OP Indenture and authorized by all necessary limited liability company action of Healthpeak
OP, and such Healthpeak OP Debt Securities have been duly executed, authenticated, issued and delivered against payment therefor, and
when the OP Guarantees of such Healthpeak OP Debt Securities have been duly authorized by all necessary corporate or limited liability
company action, as applicable, of the OP Guarantors and duly executed and delivered by the OP Guarantors in accordance with the terms
of the Applicable Healthpeak OP Indenture and, in each case, in the manner contemplated by the applicable Prospectus and by such limited
liability company and corporate action, as applicable, such Healthpeak OP Debt Securities and OP Guarantees will be the legally valid
and binding obligations of Healthpeak OP and the OP Guarantors, respectively, enforceable against Healthpeak OP and the OP Guarantors
in accordance with their respective terms.
2. When
the Company Indenture has been duly authorized, executed and delivered by all necessary corporate action of the Company, and when the
specific terms of a particular series of Company Debt Securities have been duly established in accordance with the terms of the Company
Indenture and authorized by all necessary corporate action of the Company, and such Company Debt Securities have been duly executed, authenticated,
issued and delivered against payment therefor, and when the Company Guarantees of such Company Debt Securities have been duly authorized
by all necessary limited liability company action of the Company Guarantors and duly executed and delivered by the Company Guarantors
in accordance with the terms of the Company Indenture and, in each case, in the manner contemplated by the applicable Prospectus and by
such corporate and limited liability company action, as applicable, such Company Debt Securities and Company Guarantees will be the legally
valid and binding obligations of the Company and the Company Guarantors, respectively, enforceable against the Company and the Company
Guarantors in accordance with their respective terms.
3. When
the applicable deposit agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular issuance of Depositary Shares have been duly established in accordance with the terms of the applicable
deposit agreement and authorized by all necessary corporate action of the Company, and such Depositary Shares have been duly executed,
authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable deposit agreement and in the
manner contemplated by the applicable Prospectus and by such corporate action (assuming the underlying securities have been validly issued
and deposited with the depositary), such Depositary Shares will be the legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
4. When
the applicable warrant agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular issuance of Warrants have been duly established in accordance with the terms of the applicable
warrant agreement and authorized by all necessary corporate action of the Company, and such Warrants have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with the terms of the applicable warrant agreement and in the manner contemplated
by the applicable Prospectus and by such corporate action (assuming the securities issuable upon exercise of such Warrants have been duly
authorized and reserved for issuance by all necessary corporate action), such Warrants will be the legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
Our opinions are subject to: (i) the effect
of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in a proceeding
in equity or at law (including the possible unavailability of specific performance or injunctive relief), (b) concepts of materiality,
reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding is brought; and (iii) the
invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution
to a party with respect to a liability where such indemnification or contribution is contrary to public policy.
We express no opinion as to (a) any provision
for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent
such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration,
remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the payment of attorneys’
fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration of any Debt Securities,
collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon, (f) the
creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance waivers of claims, defenses,
rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law,
or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity, election or cumulation
of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations, (k) grants of setoff
rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent to assignment or transfer
of any right or property, (n) provisions purporting to make a guarantor primarily liable rather than as a surety, (o) provisions
purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation, (p) any provision
to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars (or a judgment in respect of
such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise provides,
and (q) the severability, if invalid, of provisions to the foregoing effect.
With your consent, we have assumed (a) that
each of the OP Debt Securities, OP Guarantees, Company Debt Securities, Company Guarantees, Depositary Shares and Warrants and the Applicable
Healthpeak OP Indenture, Company Indenture, deposit agreements and warrant agreements governing such relevant securities (collectively,
the “Documents”) will be governed by the internal laws of the State of New York, (b) that each of the Documents
has been or will be duly authorized, executed and delivered by the parties thereto, (c) that each of the Documents constitutes or
will constitute legally valid and binding obligations of the parties thereto other than the Company, Healthpeak OP, DOC DR Holdco and
DOC DR, as applicable, enforceable against each of them in accordance with their respective terms, and (d) that the status of each
of the Documents as legally valid and binding obligations of the parties will not be affected by any (i) breaches of, or defaults
under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures
to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental
authorities.
This opinion is for your benefit in connection
with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained
in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| |
Sincerely, |
| |
|
| |
/s/
Latham & Watkins LLP |
Exhibit 8.1
| |
10250 Constellation Blvd., Suite 1100 |
| |
Los Angeles, California 90067 |
| |
Tel: +1.424.653.5500 Fax: +1.424.653.5501 |
| |
www.lw.com |
| |
|
 |
FIRM / AFFILIATE OFFICES |
| Austin |
Milan |
| |
Beijing |
Munich |
| |
Boston |
New York |
| |
Brussels |
Orange County |
| |
Century City |
Paris |
| February 5, 2025 |
Chicago |
Riyadh |
| |
Dubai |
San Diego |
| |
Düsseldorf |
San Francisco |
| |
Frankfurt |
Seoul |
| Healthpeak Properties, Inc. |
Hamburg |
Silicon Valley |
| Healthpeak OP, LLC |
Hong Kong |
Singapore |
| DOC DR Holdco, LLC |
Houston |
Tel Aviv |
| DOC DR, LLC |
London |
Tokyo |
| 4600 South Syracuse Street, Suite 500 |
Los Angeles |
Washington, D.C. |
| Denver, CO 80237 |
Madrid |
|
Re: Healthpeak
Properties, Inc., Healthpeak OP, LLC, DOC DR Holdco, LLC, DOC DR, LLC
To the addressees set forth above:
We have acted as special tax counsel to Healthpeak
Properties, Inc., a Maryland corporation (the “Company”), Healthpeak OP, LLC, a Maryland limited liability
company (“Healthpeak OP”), DOC DR Holdco, LLC, a Maryland limited liability company (“DOC DR Holdco”),
and DOC DR, LLC, a Maryland limited liability company (“DOC DR”), in connection with the filing on the date
hereof with the Securities and Exchange Commission (the “Commission”) of Post-Effective Amendment No. 1
to the registration statement on Form S-3 (Registration Nos. 333-276954, 333-276954-01, 333-276954-02 and 333-276954-03) (as amended,
the “Registration Statement”), including a base prospectus (the “Base Prospectus”),
which provides that the Base Prospectus will be supplemented by one or more prospectus supplements (each such prospectus supplement, together
with the Base Prospectus, a “Prospectus”), under the Securities Act of 1933, as amended (the “Act”),
relating to the registration for issue and sale of certain securities of the Company and Healthpeak OP.
You have requested our opinion
concerning (i) the statements set forth in the Prospectus under the caption “United States Federal Income Tax Considerations,”
and (ii) certain federal income tax consequences relating to the Company of its election to be treated as a “real estate investment
trust” (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”).
This opinion is based on various facts and assumptions, including the facts set forth in the Registration Statement and the Prospectus
concerning the business, assets and governing documents of the Company and its subsidiaries. We have also been furnished with, and with
your consent have relied upon, certain representations made by the Company and its subsidiaries with respect to certain factual matters
through a certificate of an officer of the Company, dated as of the date hereof (the “Officer’s Certificate”).
In our capacity as special
tax counsel to the Company, we have made such legal and factual examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments as we have deemed necessary
or appropriate for purposes of this opinion. For the purposes of our opinion, we have not made an independent investigation or audit of
the facts set forth in the above referenced documents or in the Officer’s Certificate. In addition, in rendering this opinion we
have assumed the truth and accuracy of all representations and statements made to us that are qualified as to knowledge or belief, without
regard to such qualification. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic
original documents of all documents submitted to us as copies.
We are opining herein only
as to the federal income tax laws of the United States, and we express no opinion with respect to the applicability thereto, or the effect
thereon, of other federal laws or the laws of any state or other jurisdiction, or as to any matters of municipal law or the laws of any
other local agencies within any state.
Based on such facts, and subject
to the qualifications, assumptions, representations and limitations set forth herein, we hereby confirm that:
1. Commencing
with the Company’s taxable year ended December 31, 2015, the Company has been organized and operated in conformity with the
requirements for qualification and taxation as a REIT under the Code, and its current and proposed method of operation, as described in
the materials discussed above, will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under
the Code.
2. The
statements set forth in the Prospectus under the heading “United States Federal Income Tax Considerations,” insofar as they
purport to describe or summarize certain provisions of the statutes or regulations referred to therein, are accurate descriptions or summaries
in all material respects.
No opinion is expressed as
to any matter not discussed herein.
This opinion is rendered to
you as of the date of this letter, and we undertake no obligation to update this opinion subsequent to the date hereof. This opinion is
based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the Internal Revenue Service
and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Any such
change may affect the conclusions stated herein. Also, any variation or difference in the facts from those set forth in the Registration
Statement, the Prospectus or the Officer’s Certificate may affect the conclusions stated herein. As described in the Registration
Statement and the Prospectus, the Company’s qualification and taxation as a REIT depend upon the Company’s ability to meet
the various qualification tests imposed under the Code, including through actual annual operating results, asset composition, distribution
levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Latham & Watkins LLP.
Accordingly, no assurance can be given that the actual results of the Company’s operation for any particular taxable year will satisfy
such requirements. In addition, the opinion set forth above does not foreclose the possibility that the Company may have to pay a deficiency
dividend, or an excise or penalty tax, which could be significant in amount, in order to maintain its REIT qualification.
This opinion is rendered only to you and is solely for your benefit
in connection with the Registration Statement upon the understanding that we are not hereby assuming professional responsibility to any
other person whatsoever. This opinion may not be relied upon by you for any other purpose, or furnished to, assigned to, quoted to or
relied upon by any other person, firm or other entity for any purpose, without our prior written consent, which may be granted or withheld
in our sole discretion, provided that this opinion may be relied upon by persons entitled to rely on it pursuant to applicable provisions
of federal securities law.
We consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm contained in the Prospectus under the headings “United States Federal
Income Tax Considerations” and “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| |
Sincerely, |
| |
|
| |
/s/
Latham & Watkins LLP |
Exhibit 22.1
The following subsidiaries of Healthpeak Properties, Inc.
(the “Company”) (i) will be the issuer or guarantors, as applicable (and as described below), of debt securities under
the indenture (the “Healthpeak OP Indenture”) to be entered into among Healthpeak OP, LLC, as issuer, and the Company, DOC
DR, LLC and DOC DR Holdco, LLC, as guarantors and (ii) may be guarantors of debt securities under the indenture (the “Company
Indenture”) to be entered into among the Company, as issuer, and each of the subsidiaries listed below, as guarantors:
|
Subsidiary |
|
Role |
|
Jurisdiction
of Organization |
| Healthpeak OP, LLC |
|
Issuer under the Healthpeak OP Indenture
Guarantor under the Company Indenture |
|
Maryland |
| DOC DR, LLC |
|
Guarantor under each of the Healthpeak OP Indenture and the Company Indenture |
|
Maryland |
| DOC DR Holdco, LLC |
|
Guarantor under each of the Healthpeak OP Indenture and the Company Indenture |
|
Maryland |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to the Registration Statement on Form S-3 of our reports dated February 4, 2025, relating to the financial
statements of Healthpeak Properties, Inc. and the effectiveness of Healthpeak Properties, Inc.’s internal control over
financial reporting, appearing in the Annual Report on Form 10-K of Healthpeak Properties, Inc. for the year ended December 31,
2024. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte & Touche LLP
Costa Mesa, California
February 5, 2025
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE
ACT OF 1939 OF A
CORPORATION DESIGNATED TO
ACT AS TRUSTEE
CHECK IF AN APPLICATION
TO DETERMINE
ELIGIBILITY OF A TRUSTEE
PURSUANT TO
SECTION 305(b)(2) ¨
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as
specified in its charter)
| |
95-3571558 |
| (Jurisdiction
of incorporation |
(I.R.S.
employer |
| if
not a U.S. national bank) |
identification
no.) |
| |
|
| 333
South Hope Street |
|
| Suite 2525 |
|
| Los
Angeles, California |
90071 |
| (Address
of principal executive offices) |
(Zip
code) |
| |
|
Healthpeak OP, LLC
(Exact name of obligor as
specified in its charter)
| Maryland |
92-2270343 |
| (State
or other jurisdiction of |
(I.R.S.
employer |
| incorporation
or organization) |
identification
no.) |
| |
|
| 4600
South Syracuse Street, Suite 500 |
|
| Denver,
Colorado |
80237 |
| (Address
of principal executive offices) |
(Zip
code) |
| |
|
Healthpeak Properties, Inc.
(Exact name of registrant
as specified in its charter)
| Maryland |
33-0091377 |
| (State
or other jurisdiction of |
(I.R.S.
employer |
| incorporation
or organization) |
identification
no.) |
| |
|
| 4600
South Syracuse Street, Suite 500 |
|
| Denver,
Colorado |
80237 |
| (Address
of principal executive offices) |
(Zip
code) |
| |
|
DOC
DR, LLC
(Exact
name of registrant as specified in its charter)
| |
|
| Maryland |
80-0941870 |
| (State
or other jurisdiction of |
(I.R.S.
employer |
| incorporation
or organization) |
identification
no.) |
| |
|
| 4600
South Syracuse Street, Suite 500 |
|
| Denver,
Colorado |
80237 |
| (Address
of principal executive offices) |
(Zip
code) |
| |
|
DOC
DR Holdco, LLC
(Exact
name of registrant as specified in its charter)
| |
|
| Maryland |
46-2519850 |
| (State
or other jurisdiction of |
(I.R.S.
employer |
| incorporation
or organization) |
identification
no.) |
| |
|
| 4600
South Syracuse Street, Suite 500 |
|
| Denver,
Colorado |
80237 |
| (Address
of principal executive offices) |
(Zip
code) |
| |
|
Debt Securities
and Guarantees of Debt Securities
(Title of the indenture
securities)
| 1. | General information. Furnish the
following information as to the trustee: |
| (a) | Name and address of each examining
or supervising authority to which it is subject. |
| |
Name |
|
Address |
|
| |
|
|
|
|
| |
Comptroller of the Currency United States Department
of the Treasury |
|
Washington, DC 20219 |
|
| |
|
|
|
|
| |
Federal Reserve Bank |
|
San Francisco, CA 94105 |
|
| |
|
|
|
|
| |
Federal Deposit Insurance Corporation |
|
Washington, DC 20429 |
|
| |
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of
the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses
below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the
Trust Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of
The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust
Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948
and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the
trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement
No. 333-121948). |
| 3. | A copy of the authorization of the trustee
to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration
Statement No. 333-152875). |
| 4. | A copy of the existing by-laws of the trustee
(Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of
the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of
the Trustee published pursuant to law or to the requirements of its supervising or examining
authority. |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee. The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws
of the United States of America, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 3rd day of February 2025.
| |
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
| |
|
| |
By: |
/s/ Ann Dolezal |
| |
|
Name:
Ann M. Dolezal |
| |
|
Title: Vice
President |
EXHIBIT 7
Consolidated Report of Condition
of
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
of 333 South Hope Street,
Suite 2525, Los Angeles, CA 90071
At the close of business
September 30, 2024, published in accordance with Federal regulatory authority instructions.
| |
Dollar
amounts |
| |
in
thousands |
ASSETS
| Cash and balances due from depository institutions: | |
| |
| Noninterest-bearing balances
and currency and coin | |
| 26,798 | |
| Interest-bearing balances | |
| 301,825 | |
| Securities: | |
| | |
| Held-to-maturity securities | |
| 0 | |
| Available-for-sale debt securities | |
| 525 | |
| Equity securities with readily determinable
fair values not held for trading | |
| 0 | |
| Federal funds sold and securities purchased under agreements
to resell: | |
| | |
| Federal funds sold in domestic offices | |
| 0 | |
| Securities purchased under agreements
to resell | |
| 0 | |
| Loans and lease financing receivables: | |
| | |
| Loans and leases held for sale | |
| 0 | |
| Loans and leases held for investment | |
| 0 | |
|
LESS: Allowance for credit losses on loans and leases | |
| 0 | |
| Loans and leases held for investment,
net of allowance | |
| 0 | |
| Trading assets | |
| 0 | |
| Premises and fixed assets (including right-of-use assets) | |
| 10,600 | |
| Other real estate owned | |
| 0 | |
| Investments in unconsolidated subsidiaries and associated
companies | |
| 0 | |
| Direct and indirect investments in real estate ventures | |
| 0 | |
| Intangible assets | |
| 856,313 | |
| Other assets | |
| 95,524 | |
| Total assets | |
$ | 1,291,585 | |
LIABILITIES
| Deposits: | |
| |
| In domestic offices | |
| 1,118 | |
| Noninterest-bearing | |
| 1,118 | |
| Interest-bearing | |
| 0 | |
| Federal funds purchased and securities sold under agreements
to repurchase: | |
| | |
| Federal funds purchased in domestic offices | |
| 0 | |
| Securities sold under agreements to repurchase | |
| 0 | |
| Trading liabilities | |
| 0 | |
| Other borrowed money: | |
| | |
| (includes mortgage indebtedness and obligations under capitalized
leases) | |
| 0 | |
| Not applicable | |
| | |
| Not applicable | |
| | |
| Subordinated notes and debentures | |
| 0 | |
| Other liabilities | |
| 257,847 | |
| Total liabilities | |
| 258,965 | |
| Not applicable | |
| | |
EQUITY CAPITAL
| Perpetual preferred stock and related surplus | |
| 0 | |
| Common stock | |
| 1,000 | |
| Surplus (exclude all surplus related to preferred stock) | |
| 107,099 | |
| Not available | |
| | |
| Retained earnings | |
| 924,518 | |
| Accumulated other comprehensive income | |
| 3 | |
| Other equity capital components | |
| 0 | |
| Not available | |
| | |
| Total bank equity capital | |
| 1,032,620 | |
| Noncontrolling (minority) interests
in consolidated subsidiaries | |
| 0 | |
| Total equity capital | |
| 1,032,620 | |
| Total liabilities and equity capital | |
| 1,291,585 | |
I, Shana Quinn, CFO of the above-named bank do
hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared
in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge
and belief.
Shana
Quinn ) CFO
We, the undersigned directors (trustees), attest
to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been
examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and is true and correct.
| |
Kevin C. Weeks, President |
) |
|
| |
Cathleen Sokolowski, Managing Director |
) |
Directors (Trustees) |
| |
Jon M. Pocchia, Senior Director |
) |
|
Exhibit 25.2
securities
and exchange commission
Washington, D.C. 20549
FORM T-1
Statement
of Eligibility Under
The
Trust Indenture Act of 1939 of a
Corporation
Designated to Act as Trustee
Check if an Application to Determine Eligibility
of
a
Trustee Pursuant to Section 305(b)(2) ¨
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
800 Nicollet Mall
Minneapolis, Minnesota |
55402 |
| (Address of principal executive offices) |
(Zip Code) |
Bradley E. Scarbrough
U.S. Bank Trust Company, National Association
633 West 5th Street, 24th
Floor,
Los Angeles, CA 90071
(213) 615-6047
(Name, address and telephone number of agent for
service)
Healthpeak Properties, Inc.
(Issuer with respect to the Securities)
| Maryland |
33-0091377 |
| (State
or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
4600 South Syracuse Street, Suite 500
Denver, CO |
80237 |
| (Address of Principal Executive Offices) |
(Zip Code) |
Debt Securities
(Title of the Indenture
Securities
FORM T-1
Item
1. GENERAL INFORMATION. Furnish the following information as to the Trustee.
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
Item
2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
None
Items
3-15 Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any
Indenture for which the Trustee acts as Trustee.
Item
16. LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
| 1. | A copy of the Articles of Association of the Trustee, attached
as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence
business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate
trust powers, included in Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of September 30, 2024, published pursuant to law or the requirements of its supervising
or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of Los Angeles, State of California on the 5th of February, 2025.
| |
U.S. BANK TRUST COMPANY, NATIONAL |
| |
ASSOCIATION |
| |
|
| |
By: |
/s/ Bradley E. Scarbrough |
| |
|
Bradley E. Scarbrough |
| |
|
Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the
“Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST.
The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND.
The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of
the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association
may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD.
The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be
fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the
shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding
company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the
date of purchase, (ii) the date the person became a director, or (iii) the date of that person's most recent election to the
board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be
used.
Any vacancy in the board of directors may be filled
by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of
directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the
next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the
expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualified or until there
is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors,
without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution
of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory
directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with
any board action, and shall not be required to own qualifying shares.
FOURTH.
There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought
before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day
of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state
in which the
Association
is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the
following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of
directors, or, if the directors fail to fix the day,
by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of
the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes
each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be
elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner
selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held
by him or her.
A director may
resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall
be effective when the notice is delivered unless the notice specifies a later effective date.
A
director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose
or one of the purposes is to remove him or her is provided, if
there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director
may not be removed if the number of votes sufficient
to elect him or her under cumulative voting is voted against his or her removal.
FIFTH.
The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten
dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of
the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any
class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association,
whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of
subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and
at such price as the board of directors may from time to time fix.
Transfers
of the Association's stock are subject to the prior written approval of a federal depository institution regulatory agency. If no
other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles
of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of
Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise specified in the Articles of
Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record
date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first
notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association,
at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders.
Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or
reclassification of all or part of securities into securities of another class or series.
SIXTH.
The board of directors shall appoint one of its members president of this Association and one of its members chairperson of
the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders'
meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required
to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized
by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees,
and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms
and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association's management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided
that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with
law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs
of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH.
The board of directors shall have the power to change the location of the main office to any authorized branch within the limits
of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock
of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency,
to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits.
The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other
location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH.
The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH.
The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock
of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the
United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders
shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to
each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any
action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH.
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote
of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required
by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association's activities and
services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association's board of directors
may propose one or more amendments to the Articles of Association for submission to the shareholders.
In
witness whereof, we have hereunto set our hands this 11th of June, 1997.
Exhibit 2
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual
Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall
be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days
or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of
the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder
of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated
day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold
an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution
of the Association.
Section 1.2. Special
Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least
ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided
by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations
for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies.
Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting
and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record
Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date
of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum
and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any
meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and
the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter
submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors.
The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine
the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at
all annual and special meetings of shareholders.
Section 1.8. Waiver
and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote
Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely
by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board
of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly
limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term
of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified,
or until their earlier resignation or removal.
Section 2.3. Powers.
In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles
of Association, the Bylaws and by law.
Section 2.4. Number.
As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than
twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a
number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting
thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing
directors, the Board by a majority vote of the full Board may increase the size of the Board but not to more than a total of
twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors
only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four
directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying
equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each
director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by
applicable law.
Section 2.5. Organization
Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers
of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed
for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular
Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special
Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or
the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board
shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for
the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before
the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement
of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum
and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided
by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice.
Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of
those directors present and voting shall be the act of the Board.
Section 2.9. Written
Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written
consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote
Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and
such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies.
When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular
meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory
Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board
of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated
organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board,
provided, that the Board's responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust
Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external
auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled
by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the
results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits,
the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company
that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must
not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s
fiduciary activities; and
(2) Must
consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control
the fiduciary activities of the Association.
Section 3.3. Executive
Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and
may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the
Board is not meeting.
Section 3.4. Trust
Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary
activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management
Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes
related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the
closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other
Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes
and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities
that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from
time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either
the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee
shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings,
Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of
the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or
recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory
board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its
functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman
of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman
shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred
upon or assigned by the Board.
Section 4.2. President.
The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside
at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers
and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also
have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice
President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board
and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the
Board in the absence of both the Chairman and President.
Section 4.4. Secretary.
The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall
keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall
be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records
of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise
any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall
also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries
with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other
Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as
from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact
the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several
offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other
authorized officer. Any person may hold two offices.
Section 4.6. Tenure
of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and
qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the
Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board
may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such
form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President,
Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association,
and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to such person's shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall
recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board
may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers,
voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association
shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant
to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any
Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution
of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements,
assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits,
bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association,
or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written
instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association.
The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records.
The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders,
the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of
each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust
Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities
have been properly undertaken and discharged.
Section 7.4. Trust
Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship
and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under law.
Section 7.5. Notice.
Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail,
in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive
such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws,
prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association
shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145
of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of
insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all
reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled
to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and
shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined
at 12 U.S.C. § 1813(u).
Section 8.2.
Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at
12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be
reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and
(b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12
U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency,
shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws
shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed,
at any regular or special meeting of the Board.
Section 9.2. A copy of
the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be
open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal
Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first
day of December following.
Section 10.2. Governing
Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its
corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination
of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: February 5th, 2025
| |
By: |
/s/ Bradley E. Scarbrough |
| |
|
Bradley E. Scarbrough |
| |
|
Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 9/30/2024
($000’s)
| | |
9/30/2024 | |
| Assets | |
| |
| Cash and Balances Due From Depository Institutions | |
$ | 1,551,827 | |
| Securities | |
| 4,568 | |
| Federal Funds | |
| 0 | |
| Loans & Lease Financing Receivables | |
| 0 | |
| Fixed Assets | |
| 1,070 | |
| Intangible Assets | |
| 576,760 | |
| Other Assets | |
| 153,717 | |
| Total
Assets | |
$ | 2,287,942 | |
| | |
| | |
| Liabilities | |
| | |
| Deposits | |
$ | 0 | |
| Fed Funds | |
| 0 | |
| Treasury Demand Notes | |
| 0 | |
| Trading Liabilities | |
| 0 | |
| Other Borrowed Money | |
| 0 | |
| Acceptances | |
| 0 | |
| Subordinated Notes and Debentures | |
| 0 | |
| Other Liabilities | |
| 215,240 | |
| Total Liabilities | |
$ | 215,240 | |
| | |
| | |
| Equity | |
| | |
| Common and Preferred Stock | |
| 200 | |
| Surplus | |
| 1,171,635 | |
| Undivided Profits | |
| 900,867 | |
| Minority Interest in Subsidiaries | |
| 0 | |
| Total Equity Capital | |
$ | 2,072,702 | |
| | |
| | |
| Total Liabilities and Equity Capital | |
$ | 2,287,942 | |
Exhibit 25.3
securities
and exchange commission
Washington, D.C. 20549
FORM T-1
Statement
of Eligibility Under
The
Trust Indenture Act of 1939 of a
Corporation
Designated to Act as Trustee
Check if an Application to Determine Eligibility
of
a
Trustee Pursuant to Section 305(b)(2) ¨
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
800 Nicollet Mall
Minneapolis, Minnesota |
55402 |
| (Address
of principal executive offices) |
(Zip
Code) |
Bradley E. Scarbrough
U.S. Bank Trust Company, National Association
633 West 5th Street, 24th
Floor,
Los Angeles, CA 90071
(213) 615-6047
(Name, address and telephone number of agent for
service)
Healthpeak OP, LLC
(Exact name of obligor as specified in its charter)
| Maryland |
92-2270343 |
(State
or other jurisdiction of incorporation or
organization) |
(I.R.S. Employer Identification No.) |
4600
South Syracuse Street, Suite 500
Denver, CO |
80237 |
| (Address
of Principal Executive Offices) |
(Zip
Code) |
Debt Securities
(Title of the Indenture
Securities
FORM T-1
Item
1. GENERAL INFORMATION. Furnish the following
information as to the Trustee.
| a) | Name and address of each examining or supervising authority to
which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized
to exercise corporate trust powers. |
Yes
Item
2. AFFILIATIONS WITH THE OBLIGOR. If the obligor
is an affiliate of the Trustee, describe each such affiliation.
None
Items
3-15 Items 3-15 are not applicable because to the best of the Trustee's knowledge, the
obligor is not in default under any Indenture for which the Trustee acts as Trustee.
Item
16. LIST OF EXHIBITS: List below all exhibits filed as a
part of this statement of eligibility and qualification.
| 1. | A copy of the Articles
of Association of the Trustee, attached as Exhibit 1. |
| 2. | A copy of the certificate
of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the authorization
of the Trustee to exercise corporate trust powers, included in Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as
of September 30, 2024, published pursuant to law or the requirements of its supervising
or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements
of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification
to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles, State of California on the
5th of February , 2025.
| |
U.S. BANK TRUST COMPANY, NATIONAL |
| |
ASSOCIATION |
| |
|
| |
By: |
/s/
Bradley E. Scarbrough |
| |
|
Bradley E. Scarbrough |
| |
|
Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION
For the purpose of organizing an association
(the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles
of Association:
FIRST.
The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND.
The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of
the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association
may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD.
The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact
number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a
majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association
or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person's most recent election
to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company
may be used.
Any vacancy in the board of directors may be
filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number
of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at
the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite
the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualified or until
there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of
directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by
resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary
or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection
with any board action, and shall not be required to own qualifying shares.
FOURTH.
There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought
before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day
of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state
in which the Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a
legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated
by the board of directors, or, if the directors fail
to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance
notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of
votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors
to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the
manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock
held by him or her.
A director may resign
at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later effective date.
A
director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose
or one of the purposes is to remove him or her is provided, if
there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director
may not be removed if the number of votes sufficient
to elect him or her under cumulative voting is voted against his or her removal.
FIFTH.
The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten
dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of
the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any
class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association,
whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right
of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine
and at such price as the board of directors may from time to time fix.
Transfers
of the Association's stock are subject to the prior written approval of a federal depository institution regulatory agency. If no
other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of
Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association
must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of
Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the
record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before
the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before
the meeting.
The Association, at
any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders.
Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or
reclassification of all or part of securities into securities of another class or series.
SIXTH.
The board of directors shall appoint one of its members president of this Association and one of its members chairperson of
the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders'
meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required
to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized
by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define
the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate
the performance of its duties, but not the responsibility for its duties, to the officers,
employees, and agents of the Association. |
| (3) | Fix
the compensation and enter employment contracts with its officers and employees upon reasonable
terms and conditions consistent with applicable law. |
| (4) | Dismiss
officers and employees. |
| (5) | Require
bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify
written policies authorized by the Association's management or committees of the board. |
| (7) | Regulate
the manner any increase or decrease of the capital of the Association shall be made; provided
that nothing herein shall restrict the power of shareholders to increase or decrease the
capital of the Association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| (8) | Manage
and administer the business and affairs of the Association. |
| (9) | Adopt
initial Bylaws, not inconsistent with law or the Articles of Association, for managing the
business and regulating the affairs of the Association. |
| (10) | Amend
or repeal Bylaws, except to the extent that the Articles of Association reserve this power
in whole or in part to the shareholders. |
| (12) | Generally
perform all acts that are legal for a board of directors to perform. |
SEVENTH.
The board of directors shall have the power to change the location of the main office to any authorized branch within the
limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of
the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of
the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond
such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association
to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the
Currency.
EIGHTH.
The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH.
The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock
of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the
United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders
shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to
each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any
action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH.
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote
of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required
by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association's activities
and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association's board of directors
may propose one or more amendments to the Articles of Association for submission to the shareholders.
In
witness whereof, we have hereunto set our hands this 11th of June, 1997.
Exhibit 2
Exhibit 4
U.S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION
AMENDED AND RESTATED
BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual
Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business,
shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten
(10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the
Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law,
the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is
not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice
thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work
a forfeiture or dissolution of the Association.
Section 1.2. Special
Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least
ten percent of the outstanding stock.
Every such special meeting, unless otherwise
provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose
of the meeting.
Section 1.3. Nominations
for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies.
Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting
and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record
Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date
of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum
and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting
of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting
may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the
shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors.
The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine
the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at
all annual and special meetings of shareholders.
Section 1.8. Waiver
and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote
Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely
by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board
of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly
limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term
of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified,
or until their earlier resignation or removal.
Section 2.3. Powers.
In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles
of Association, the Bylaws and by law.
Section 2.4. Number.
As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five
members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members
to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with
the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board by a majority
vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy
so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of
directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by
shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control
of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her
own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization
Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers
of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time
fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular
Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special
Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board
or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board
shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for
the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before
the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement
of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum
and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided
by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice.
Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of
those directors present and voting shall be the act of the Board.
Section 2.9. Written
Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written
consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote
Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of
conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each
other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies.
When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular
meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory
Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board
of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of
affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined
by the Board, provided, that the Board's responsibility for the business and affairs of this Association shall in no respect be delegated
or diminished.
Section 3.2. Trust
Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external
auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled
by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the
results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits,
the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding
company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1)
Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s
fiduciary activities; and
(2)
Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and
control the fiduciary activities of the Association.
Section 3.3. Executive
Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and
may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when
the Board is not meeting.
Section 3.4. Trust
Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary
activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management
Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes
related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the
closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other
Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes
and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities
that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from
time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either
the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such
committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings,
Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the
advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations
made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors
or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman
of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman
shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred
upon or assigned by the Board.
Section 4.2. President.
The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside
at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers
and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also
have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice
President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board
and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the
Board in the absence of both the Chairman and President.
Section 4.4. Secretary.
The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall
keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given;
shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records
of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise
any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall
also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries
with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other
Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from
time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business
of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be
conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person
may hold two offices.
Section 4.6. Tenure
of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and
qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the
Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board
may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such
form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President,
Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association,
and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to such person's shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall
recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board
may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers,
voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association
shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant
to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any
Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1.
Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules,
accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed,
acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by
any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the
Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an
Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association
or Bylaws.
Section 7.2. Records.
The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders,
the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes
of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust
Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities
have been properly undertaken and discharged.
Section 7.4. Trust
Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship
and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under law.
Section 7.5. Notice.
Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail,
in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive
such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise
in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice
is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association
shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145
of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of
insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all
reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled
to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and
shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined
at 12 U.S.C. § 1813(u).
Section 8.2.
Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined
at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable
and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification
payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving
an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General
Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws
shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed,
at any regular or special meeting of the Board.
Section 9.2. A copy
of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall
be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1.
Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end
on the thirty-first day of December following.
Section 10.2. Governing
Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its
corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination
of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: February 5th, 2025
| |
By: |
/s/
Bradley E. Scarbrough |
| |
|
Bradley E. Scarbrough |
| |
|
Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 9/30/2024
($000’s)
| | |
9/30/2024 | |
| Assets | |
| | |
| Cash and Balances Due From Depository Institutions | |
$ | 1,551,827 | |
| Securities | |
| 4,568 | |
| Federal Funds | |
| 0 | |
| Loans & Lease Financing Receivables | |
| 0 | |
| Fixed Assets | |
| 1,070 | |
| Intangible Assets | |
| 576,760 | |
| Other Assets | |
| 153,717 | |
| Total Assets | |
$ | 2,287,942 | |
| Liabilities | |
| | |
| Deposits | |
$ | 0 | |
| Fed Funds | |
| 0 | |
| Treasury Demand Notes | |
| 0 | |
| Trading Liabilities | |
| 0 | |
| Other Borrowed Money | |
| 0 | |
| Acceptances | |
| 0 | |
| Subordinated Notes and Debentures | |
| 0 | |
| Other Liabilities | |
| 215,240 | |
| Total Liabilities | |
$ | 215,240 | |
| Equity | |
| | |
| Common and Preferred Stock | |
| 200 | |
| Surplus | |
| 1,171,635 | |
| Undivided Profits | |
| 900,867 | |
| Minority Interest in Subsidiaries | |
| 0 | |
| Total Equity Capital | |
$ | 2,072,702 | |
| | |
| | |
| Total Liabilities and Equity Capital | |
$ | 2,287,942 | |
S-3
POSASR
EX-FILING FEES
333-276954
0000765880
HEALTHPEAK PROPERTIES, INC.
0000765880
2025-02-04
2025-02-04
0000765880
1
2025-02-04
2025-02-04
0000765880
2
2025-02-04
2025-02-04
0000765880
3
2025-02-04
2025-02-04
0000765880
4
2025-02-04
2025-02-04
0000765880
5
2025-02-04
2025-02-04
0000765880
6
2025-02-04
2025-02-04
0000765880
7
2025-02-04
2025-02-04
0000765880
8
2025-02-04
2025-02-04
0000765880
9
2025-02-04
2025-02-04
0000765880
10
2025-02-04
2025-02-04
iso4217:USD
xbrli:pure
xbrli:shares
|
Calculation of Filing Fee Tables
|
|
S-3
|
|
HEALTHPEAK PROPERTIES, INC.
|
|
Table 1: Newly Registered and Carry Forward Securities
|
|
|
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
1
|
Equity
|
Common Stock of Healthpeak Properties, Inc.
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
2
|
Equity
|
Preferred Stock of Healthpeak Properties, Inc.
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
3
|
Debt
|
Debt Securities of Healthpeak Properties, Inc.
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
4
|
Debt
|
Guarantees by Healthpeak Properties, Inc. of Debt Securities of Healthpeak OP, LLC
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
5
|
Other
|
Healthpeak Properties, Inc. Depositary Shares
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
6
|
Other
|
Healthpeak Properties, Inc. Warrants
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
7
|
Debt
|
Debt Securities of Healthpeak OP, LLC
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
8
|
Debt
|
Guarantees by Healthpeak OP, LLC of Debt Securities of Healthpeak Properties, Inc.
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
9
|
Debt
|
Guarantees by DOC DR, LLC of Debt Securities of Healthpeak Properties, Inc. and Healthpeak OP, LLC
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
10
|
Debt
|
Guarantees by DOC DR Holdco, LLC of Debt Securities of Healthpeak Properties, Inc. and Healthpeak OP, LLC
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
|
|
Carry Forward Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts:
|
|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Net Fee Due:
|
|
|
|
$
0.00
|
|
|
|
|
|
1
|
Note 1.a. Omitted pursuant to Form S-3 General Instruction II.E.
Note 1.b. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares. An unspecified number of the securities of each identified class of securities is being registered for possible issuance from time to time at indeterminate prices.
Note 1.c. Deferred in reliance upon Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
|
|
|
|
2
|
See offering note 1.
|
|
|
|
3
|
See offering note 1.
|
|
|
|
4
|
See offering note 1.
Healthpeak Properties, Inc. will fully and unconditionally guarantee debt securities issued by Healthpeak OP, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak OP, LLC debt securities being registered.
|
|
|
|
5
|
See offering note 1.
Each depositary share will be issued under a deposit agreement, will represent an interest in a fractional share of preferred stock and will be evidenced by a depositary receipt.
|
|
|
|
6
|
See offering note 1.
|
|
|
|
7
|
See offering note 1.
|
|
|
|
8
|
See offering note 1.
Healthpeak OP, LLC may fully and unconditionally guarantee debt securities issued by Healthpeak Properties, Inc. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak Properties, Inc. debt securities being registered.
|
|
|
|
9
|
See offering note 1.
DOC DR, LLC and DOC DR Holdco, LLC may fully and unconditionally guarantee debt securities issued by Healthpeak Properties, Inc. and/or Healthpeak OP, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak Properties, Inc. and/or Healthpeak OP, LLC debt securities being registered.
|
|
|
|
10
|
See offering note 1.
DOC DR, LLC and DOC DR Holdco, LLC may fully and unconditionally guarantee debt securities issued by Healthpeak Properties, Inc. and/or Healthpeak OP, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak Properties, Inc. and/or Healthpeak OP, LLC debt securities being registered.
|
|
|
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v3.25.0.1
Offerings
|
Feb. 04, 2025 |
| Offering: 1 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Common Stock of Healthpeak Properties, Inc.
|
| Fee Rate |
0.01531%
|
| Offering Note |
Note 1.a. Omitted pursuant to Form S-3 General Instruction II.E.
Note 1.b. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares. An unspecified number of the securities of each identified class of securities is being registered for possible issuance from time to time at indeterminate prices.
Note 1.c. Deferred in reliance upon Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
|
| Offering: 2 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Preferred Stock of Healthpeak Properties, Inc.
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
|
| Offering: 3 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Debt Securities of Healthpeak Properties, Inc.
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
|
| Offering: 4 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Guarantees by Healthpeak Properties, Inc. of Debt Securities of Healthpeak OP, LLC
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
Healthpeak Properties, Inc. will fully and unconditionally guarantee debt securities issued by Healthpeak OP, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak OP, LLC debt securities being registered.
|
| Offering: 5 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Healthpeak Properties, Inc. Depositary Shares
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
Each depositary share will be issued under a deposit agreement, will represent an interest in a fractional share of preferred stock and will be evidenced by a depositary receipt.
|
| Offering: 6 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Healthpeak Properties, Inc. Warrants
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
|
| Offering: 7 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Debt Securities of Healthpeak OP, LLC
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
|
| Offering: 8 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Guarantees by Healthpeak OP, LLC of Debt Securities of Healthpeak Properties, Inc.
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
Healthpeak OP, LLC may fully and unconditionally guarantee debt securities issued by Healthpeak Properties, Inc. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak Properties, Inc. debt securities being registered.
|
| Offering: 9 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Guarantees by DOC DR, LLC of Debt Securities of Healthpeak Properties, Inc. and Healthpeak OP, LLC
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
DOC DR, LLC and DOC DR Holdco, LLC may fully and unconditionally guarantee debt securities issued by Healthpeak Properties, Inc. and/or Healthpeak OP, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak Properties, Inc. and/or Healthpeak OP, LLC debt securities being registered.
|
| Offering: 10 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Guarantees by DOC DR Holdco, LLC of Debt Securities of Healthpeak Properties, Inc. and Healthpeak OP, LLC
|
| Fee Rate |
0.01531%
|
| Offering Note |
See offering note 1.
DOC DR, LLC and DOC DR Holdco, LLC may fully and unconditionally guarantee debt securities issued by Healthpeak Properties, Inc. and/or Healthpeak OP, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of Healthpeak Properties, Inc. and/or Healthpeak OP, LLC debt securities being registered.
|
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