8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d)

of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 23, 2021

KENNEDY-WILSON HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-33824	26-0508760
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

151 S El Camino Drive, Beverly Hills, California	90212
(Address of principal executive offices)	(Zip Code)

(310) 887-6400

(Registrant’s telephone number, including area code)

N/A

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

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2.):

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

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

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

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

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

Title of each class	Trading symbol(s)	Name of each exchange on which registered
Common stock, $.0001 par value	KW	NYSE

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

Emerging growth company ☐

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

Item 1.01. Entry into a Material Definitive Agreement.

On August 23, 2021, Kennedy-Wilson, Inc. (the “Issuer”), a wholly owned subsidiary of Kennedy-Wilson Holdings, Inc. (the “Company”), completed a public offering of $600.0 million aggregate principal amount of its 4.75% Senior Notes due 2030 (the “Notes”). The Notes are the Issuer’s unsecured senior obligations and rank equally in right of payment with all of the Issuer’s existing and future unsecured and unsubordinated indebtedness and are guaranteed (the “Guarantees”) on a senior unsecured basis by the Company and certain of the Company’s subsidiaries (collectively, the “Guarantors”). The Notes were issued and sold at a public offering price of 100.00% of their principal amount.

The Notes were issued pursuant to an indenture (the “Base Indenture”), dated as of March 25, 2014, between the Issuer and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture (the “Supplemental Indenture,” and the Supplemental Indenture, together with the Base Indenture, the “Indenture”), dated as of August 23, 2021, among the Issuer, the Guarantors and the Trustee. The Indenture includes customary agreements and covenants by the Company, the Issuer and the Guarantors.

Interest on the Notes accrues at a rate of 4.75% per annum and is payable semi-annually in arrears on March 1 and September 1 of each year commencing on March 1, 2022. In addition, February 1, 2030 will be regular interest payment date for the notes. The Notes will mature on February 1, 2030, unless earlier redeemed or repurchased.

At any time prior to September 1, 2024, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of their principal amount, plus an applicable “make-whole” premium and accrued and unpaid interest, if any, to the redemption date. At any time and from time to time on or after September 1, 2024 (or, if such date is not a business day, the next business day), the Issuer may redeem the Notes, in whole or in part, at redemption prices specified in the Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. Prior to September 1, 2024, the Issuer may redeem up to 40% of the Notes from the proceeds of certain equity offerings at a redemption price specified in the Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. There is no sinking fund for the Notes.

Upon the occurrence of a change of control or certain delisting events, the Issuer will be required to make an offer to purchase all of the outstanding Notes. The purchase price will be 101% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest, if any, to the repurchase date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date). In addition, in certain circumstances in connection with asset dispositions the proceeds of which are not applied in the manner set forth in the Indenture, the Issuer will be required to use any excess proceeds to make an offer to purchase the Notes at a price equal to 100% of their principal amount, plus accrued and unpaid interest.

The Indenture also provides for events of default which, if any of them occurs, would permit or require the principal of and accrued interest on the Notes to become due and payable.

The Base Indenture and the Supplemental Indenture (including the form of certificate representing the Notes) are filed as Exhibit 4.1, 4.2 and 4.3 to this Form 8-K and are incorporated herein by reference. The foregoing descriptions of the Notes, the Guarantees, the Base Indenture and the Supplemental Indenture are summaries and are subject to and qualified in their entirety by reference to such exhibits.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

The information included in Item 1.01 above is incorporated by reference into this Item 2.03.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.	Description
1.1	Underwriting Agreement, dated as of August 9, 2021, between Kennedy-Wilson, Inc. and BofA Securities, Inc.
4.1	Base Indenture, dated as of March 25, 2014, between Kennedy-Wilson, Inc. and Wilmington Trust, National Association.
4.2	Supplemental Indenture No 2030-1, dated as of August 23, 2021, among Kennedy-Wilson Holdings, Inc., Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Wilmington Trust, National Association.
4.3	Form of 4.75% Senior Notes due 2030 (contained in Exhibit A of Exhibit 4.2).
5.1	Opinion of Latham & Watkins LLP.
5.2	Opinion of Kulik Gottesman Siegel & Ware LLP.
23.1	Consent of Latham & Watkins LLP (contained in Exhibit 5.1).
23.2	Consent of Kulik Gottesman Siegel & Ware LLP (contained in Exhibit 5.2).
104	Cover Page Interactive Data File — The cover page interactive data file does not appear in the interactive data file because its XBRL tags are embedded within the inline XBRL document.

SIGNATURES

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

KENNEDY-WILSON HOLDINGS, INC.
By:	/s/ JUSTIN ENBODY
	Justin Enbody
	Chief Financial Officer

Date: August 23, 2021

EX-1.1

Exhibit 1.1

Execution Version

KENNEDY-WILSON, INC.

(a Delaware corporation)

$600,000,000 4.75% Senior Notes due 2030

UNDERWRITING AGREEMENT

Dated: August 9, 2021

KENNEDY-WILSON, INC.

(a Delaware corporation)

$600,000,000 4.75% Senior Notes due 2030

UNDERWRITING AGREEMENT

August 9, 2021

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

as Representative of the several Underwriters

Ladies and Gentlemen:

Kennedy-Wilson, Inc., a Delaware corporation (the “Company”), confirms its agreement with BofA Securities, Inc. (“BofAS”) and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom BofAS is acting as representative (in such capacity, the “Representative”), with respect to the sale by the Company and the Guarantors (as defined below) and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in Schedule A hereto of $600,000,000 aggregate principal amount of the Company’s 4.75% Senior Notes due 2030 (the “Notes”).

The payment of principal of, and interest on the Notes will be fully and unconditionally guaranteed on a senior unsecured basis, jointly and severally, by (i) Kennedy-Wilson Holdings, Inc., a Delaware corporation (the “Parent”), (ii) the entities listed on the signature pages hereof as “Subsidiary Guarantors” (the “Subsidiary Guarantors” and together with the Parent, the “Guarantors”) and (iii) any domestic subsidiary of the Company formed or acquired after the Closing Time (as defined in Section 2(b) hereof) that executes an additional guarantee in accordance with the terms of the Indenture (as defined below), and, subject to the terms of the Indenture, their respective successors and assigns, pursuant to their guarantees (the “Guarantees”). The Notes and the Guarantees thereof are herein collectively referred to as the “Securities”).

The Securities will be issued pursuant to the indenture, dated as of March 25, 2014 (as amended, supplemented or otherwise modified from time to time, the “Base Indenture”), between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”). Certain terms of the Notes and the Guarantees will be established pursuant to a supplemental indenture (the “Supplemental Indenture”) to the Base Indenture to be dated as of the date of the Closing Time (as defined below) among the Company, the Guarantors and the Trustee (together with the Base Indenture, the “Indenture”).

This Agreement, the Securities and the Indenture are referred to herein as the “Transaction Documents.”

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The Company and the Guarantors understand that the Underwriters propose to make a public offering of the Securities as soon as the Representative deems advisable after this Agreement has been executed and delivered and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (together with the rules and regulations promulgated thereunder, the “1939 Act”).

The Company and the Guarantors have prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-235473) covering the public offering and sale of certain securities, including the Securities, under the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”). Such registration statement, as of any time, means such registration statement as amended by any post-effective amendments thereto to such time, including the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the information otherwise deemed to be a part thereof as of such time pursuant to Rule 430B under the 1933 Act Regulations (“Rule 430B”), and is referred to herein as the “Registration Statement”; provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the information otherwise deemed to be a part thereof as of such time pursuant to Rule 430B. Each preliminary prospectus supplement (including the prospectus attached thereto) used in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act , are collectively referred to herein as a “preliminary prospectus.” Promptly after execution and delivery of this Agreement, the Company and the Guarantors will prepare and file a final prospectus supplement relating to the Securities in accordance with the provisions of Rule 424(b) under the 1933 Act Regulations (“Rule 424(b)”). The final prospectus supplement (including the prospectus attached thereto), in the form first furnished or made available to the Underwriters for use in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any successor system) (“EDGAR”).

As used in this Agreement:

“Applicable Time” means 4:30 P.M., New York City time, on August 9, 2021 or such other time as agreed by the Company and the Representative.

“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses (as defined below) issued at or prior to the Applicable Time and the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time, all considered together.

“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show for an offering that is a written communication” within the meaning of Rule 433(d)(8)(i), whether

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or not required to be filed with the Commission, (iii) prepared by or on behalf of the Company or used or referred to by the Company or any Guarantor, and exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, or (iv) the Final Term Sheet (as defined below), in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).

“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433), as evidenced by its being specified in Schedule B hereto.

“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.

All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such financial statements and schedules and other information incorporated or deemed incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution and delivery of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations promulgated thereunder (the “1934 Act Regulations”), incorporated or deemed to be incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be, at or after the execution and delivery of this Agreement.

SECTION 1.    Representations and Warranties.

(a)    Representations and Warranties by the Company and the Guarantors. Each of the Company and the Guarantors, jointly and severally, hereby represents and warrants to each Underwriter as of the date hereof, the Applicable Time and the Closing Time (as defined below), and agrees with each Underwriter, as follows:

(i)    Registration Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes or pursuant to Section 8A of the 1933 Act have been instituted or are pending or, to the Company’s and the Guarantors’ knowledge, contemplated. The Parent and the Guarantors have complied with each request (if any) from the Commission for additional information. The Company is a well-known seasoned issuer (as defined in Rule 405 under the 1933 Act) eligible to use the Registration Statement as an automatic shelf registration statement, and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.

Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and at each deemed effective date with respect to the Underwriters pursuant to

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Rule 430B(f)(2) under the 1933 Act Regulations, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations.

(ii)    Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time or at the Closing Time, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, neither (A) the General Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

The representations and warranties in this subsection shall not apply to (i) the Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act or (ii) statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package, any individual Issuer Limited Use Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representative expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting—Commissions and Discounts,” the information in the first and second paragraphs under the heading “Underwriting—Short Positions,” the information under the heading “Underwriting—Electronic Distribution” and the information in the third and fourth sentences of the second paragraph under the heading “Underwriting—Other Relationships,” in each case in the form contained in the Prospectus (collectively, the “Underwriter Information”).

(iii)    Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.

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(iv)    Company Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.

(v)    Independent Accountants. The accountants who expressed their opinion with respect to the financial statements (which term as used in this Agreement includes the related schedules and notes thereto) filed with the Commission and incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, are independent registered public accounting firms within the meaning of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Accounting Oversight Board, and any non-audit services provided by such accountants to the Parent or any of its subsidiaries have been approved by the Audit Committee of the Parent’s Board of Directors.

(vi)    Financial Statements; Non-GAAP Financial Measures. The financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the consolidated financial position of the entities to which they relate at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the entities to which they relate for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The financial statement schedules attached to such financial statements present fairly in accordance with Regulation S-X under the 1933 Act the information required to be stated therein. The summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the information shown therein on a basis consistent with that of the audited financial statements included therein. The pro forma financial statements and the related notes thereto, if any, included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein at the dates indicated, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, or incorporated by reference therein, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

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(vii)    No Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects of the Parent and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) the Parent and its subsidiaries, taken as a whole, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business, and (C) except for regular quarterly dividends on the Parent’s common stock, par value $0.0001 per share, in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Parent on any class of its capital stock.

(viii)    Incorporation and Good Standing of the Parent, the Company and their Subsidiaries. Each of the Parent, the Company and their subsidiaries has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, and has corporate, partnership or limited liability company, as applicable, power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and, in the case of the Company and the Guarantors, to enter into and perform its obligations under each of the Transaction Documents to which it is a party. Each of the Parent, the Company and their subsidiaries is duly qualified as a foreign corporation, limited partnership or limited liability company, as applicable, to transact business and is in good standing or equivalent status in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Effect. All of the issued and outstanding capital stock or other ownership interest of each subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Parent, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus or as would not have a Material Adverse Effect. None of the outstanding shares of capital stock of any subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such subsidiary. The only subsidiaries of the Parent are (A) the subsidiaries listed on Exhibit 21 to the Registration Statement and (B) certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X.

(ix)    Capitalization and Other Capital Stock Matters. As of June 30, 2021, on a consolidated basis, after giving pro forma effect to the issuance and sale of the Securities pursuant hereto (and after giving effect to the other pro forma adjustments referred to under the caption referred to below), the Parent would have an authorized outstanding capitalization as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Capitalization” (other than for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or upon exercise of outstanding options or warrants described in the Registration Statement, the General Disclosure Package and the Prospectus). All of the outstanding shares of capital stock of the Parent have been duly authorized and validly issued

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and are fully paid and non-assessable. None of the outstanding shares of capital stock of the Parent were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Parent. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Parent or any of its subsidiaries other than those described in or contemplated by the Registration Statement, the General Disclosure Package and the Prospectus.

(x)    Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors.

(xi)    Authorization of Indenture. The Base Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. The Supplemental Indenture has been duly authorized by the Company and the Guarantors and, at the Closing Time, will have been duly executed and delivered by the Company and the Guarantors and, assuming due authorization, execution and delivery by the Trustee, will constitute a valid and binding agreement of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.

(xii)    Authorization of the Notes and the Guarantees. The Notes to be purchased by the Underwriters from the Company will, at the Closing Time, be in the form contemplated by the Indenture, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement and the Indenture and, at the Closing Time, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and issued and delivered against payment of the purchase price therefor as provided for in this Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be entitled to the benefits of the Indenture. The Guarantees of the Notes will, at the Closing Time, be in the form contemplated by the Indenture and have been duly authorized by the Guarantors for issuance pursuant to this Agreement and the Indenture; the Guarantees of the Notes, at the Closing Time, will have been duly executed by each of the Guarantors and, when the Notes have been authenticated in the manner provided for in the Indenture and issued and delivered against payment of the purchase price therefor as provided in this Agreement, such Guarantees will constitute valid and binding obligations of the respective Guarantors, enforceable against the respective Guarantors in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be entitled to the benefits of the Indenture. The issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company, except such preemptive rights as have been validly waived prior to the issuance of the Securities.

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(xiii)    Description of the Transaction Documents. The Transaction Documents conform in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus.

(xiv)    Registration Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement, other than those rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and those that have been waived.

(xv)    Absence of Violations, Defaults and Conflicts. None of the Parent, the Company or any of their subsidiaries is (A) in violation of its charter, by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Parent, the Company or any of their subsidiaries is a party or by which it or any of them may be bound or to which any of the properties or assets of the Parent, the Company or any of their subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Parent, the Company or any of their subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of the Transaction Documents by the Company and the Guarantors party thereto, and the consummation of the transactions contemplated herein and therein, and related transactions contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”), and compliance by the Company and the Guarantors with their respective obligations hereunder and thereunder, have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Parent, the Company or any of their subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of the Parent, the Company or any of their subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity (except for violations of any such laws, statutes, rules, regulations, judgments, orders, writs or decrees that would not, individually or in the aggregate, result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Parent, the Company or any of their subsidiaries.

(xvi)    Absence of Labor Dispute. No labor dispute with the employees of the Parent or any of its subsidiaries exists or, to the knowledge of the Parent, is imminent, and the Parent is not aware of any existing or imminent labor disturbance by the employees of any of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.

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(xvii)    Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there are no legal or governmental actions, suits, proceedings, inquiries or investigations now pending or, to the knowledge of the Parent, threatened (A) against the Parent or any of its subsidiaries or (B) which has as the subject thereof any property owned or leased by the Parent or any of its subsidiaries, which, in the case of clause (A) or (B) above, would, individually or in the aggregate, result in a Material Adverse Effect or adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company and the Guarantors of their obligations hereunder.

(xviii)    Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.

(xix)    Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the execution, delivery and performance of the Transaction Documents by the Company and the Guarantors to the extent party thereto, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated hereby or thereby, and related transactions contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, securities laws of any state or other jurisdiction (other than federal securities laws) or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).

(xx)    Possession of Licenses and Permits. The Parent and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to own, lease and operate its properties and to conduct their respective businesses, except where the failure so to possess would not, individually or in the aggregate, result in a Material Adverse Effect, and neither the Parent nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any Governmental Licenses which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.

(xxi)    Title to Properties. The Parent and each of its subsidiaries have good and marketable title to all the properties and assets reflected as owned by them in the financial statements referred to in Section 1(a)(vi) hereof (or elsewhere in the Registration Statement, the General Disclosure Package and the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (B) do not materially and adversely affect the value of such property and do not materially interfere with the use made or proposed to be made of such property by the Parent or such subsidiary. The real property, improvements, equipment and personal property held under lease by the Parent or any of its subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Parent or such subsidiary.

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(xxii)    Possession of Intellectual Property. The Parent and its subsidiaries own or possess sufficient trademarks, trade names, patent rights, copyrights, licenses, approvals, trade secrets and other similar rights (collectively, “Intellectual Property Rights”) reasonably necessary to conduct their businesses as now conducted; and the expected expiration of any of such Intellectual Property Rights would not result in a Material Adverse Effect. Neither the Parent nor any of its subsidiaries has received any notice of infringement of or conflict with asserted Intellectual Property Rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result in a Material Adverse Effect.

(xxiii)    Environmental Laws. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect: (A) each of the Parent and its subsidiaries and their respective operations and facilities are in compliance with, and not subject to any known liabilities under applicable Environmental Laws, which compliance includes, without limitation, having obtained and being in compliance with any permits, licenses or other governmental authorizations or approvals, and having made all filings and provided all financial assurances and notices, required for the ownership and operation of the business, properties and facilities of the Parent or its subsidiaries under applicable Environmental Laws, and compliance with the terms and conditions thereof; (B) neither the Parent nor any of its subsidiaries has received any written communication, whether from a governmental authority, citizens group, employee or otherwise, that alleges that the Parent or any of its subsidiaries is in violation of any Environmental Law; (C) there is no claim, action or cause of action filed with a court or governmental authority, no investigation with respect to which the Parent has received written notice, and no written notice by any person or entity alleging actual or potential liability on the part of the Parent or any of its subsidiaries based on or pursuant to any Environmental Law pending or, to the best of the Parent’s knowledge, threatened against the Parent or any of its subsidiaries or any person or entity whose liability under or pursuant to any Environmental Law the Parent or any of its subsidiaries has retained or assumed either contractually or by operation of law; (D) neither the Parent nor any of its subsidiaries is conducting or paying for, in whole or in part, any investigation, response or other corrective action pursuant to any Environmental Law at any site or facility, nor is any of them subject or a party to any order, judgment, decree, contract or agreement which imposes any obligation or liability under any Environmental Law; (E) no lien, charge, encumbrance or restriction has been recorded pursuant to any Environmental Law with respect to any assets, facility or property owned, operated or leased by the Parent or any of its subsidiaries; and (F) there are no past or present actions, activities, circumstances, conditions or occurrences, including, without limitation, the Release (as defined below) or threatened Release of any Material of Environmental Concern (as defined below), that could reasonably be expected to result in a violation of or liability under any Environmental Law (as defined below) on the part of the Parent or any of its subsidiaries, including without limitation, any such liability which the Parent or any of its subsidiaries has retained or assumed either contractually or by operation of law.

For purposes of this Agreement, “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna. “Environmental Laws” means the common law and all federal, state, local and foreign laws or regulations, ordinances, codes, orders, decrees, judgments and injunctions issued, promulgated or entered thereunder, relating to pollution or protection of the Environment or human health, including without limitation, those relating to (A) the Release or threatened Release of Materials of Environmental Concern; and (B) the manufacture, processing, distribution, use, generation, treatment, storage, transport, handling or recycling of Materials of Environmental Concern. “Materials of Environmental Concern” means any substance, material, pollutant,

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contaminant, chemical, waste, compound, or constituent, in any form, including without limitation, petroleum and petroleum products, subject to regulation or which can give rise to liability under any Environmental Law. “Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure or facility.

(xxiv)    Periodic Review of Costs of Environmental Compliance. In the ordinary course of its business, the Parent conducts a periodic review of the effect of Environmental Laws on the business, operations and properties of the Parent and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review and the amount of its established reserves, the Parent has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, result in a Material Adverse Effect.

(xxv)    ERISA Compliance. Except as would not reasonably be expected to result in a Material Adverse Effect, (A) the Parent, its subsidiaries and any “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (as amended, “ERISA,” which term, as used herein, includes the regulations and published interpretations thereunder) established or maintained by the Parent or its subsidiaries are in compliance with the applicable provisions of ERISA and, to the knowledge of the Parent, each “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) to which the Parent, its subsidiaries or any of their ERISA Affiliates (as defined below) contributes (a “Multiemployer Plan”) is in compliance with ERISA; (B) no “reportable event” (as defined under Section 4043(c) of ERISA, other than an event for which the 30-day notice requirement is waived) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” subject to Title IV of ERISA that is established or maintained by the Parent, its subsidiaries or any of their ERISA Affiliates; (C) no “single employer plan” (as defined in Section 4001(a)(15) of ERISA) established or maintained by the Parent, its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined in Section 4001(a)(18) of ERISA); (D) none of the Parent, its subsidiaries and any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971 or 4980B of the Code (as defined below); (E) neither the Parent nor its subsidiaries has incurred or reasonably expects to incur any liability under Section 4975 of the Code; and (F) each “employee benefit plan” established or maintained by the Parent or its subsidiaries that is intended to be qualified under Section 401 of the Code is the subject of a favorable determination or opinion letter from the Internal Revenue Service to the effect that it is so qualified and, to the knowledge of the Parent, nothing has occurred, whether by action or failure to act, which would reasonably be expected to cause the loss of such qualification. “ERISA Affiliate” means, with respect to the Parent or a subsidiary, any member of any group of organizations described in Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986 (as amended, the “Code,” which term, as used herein, includes the regulations and published interpretations thereunder) of which the Parent or such subsidiary is a member.

(xxvi)    Accounting Controls and Disclosure Controls. The Parent and its subsidiaries maintain a system of accounting controls that is in compliance with the Sarbanes-Oxley Act of 2002, including the rules and regulations of the Commission promulgated thereunder, and is

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sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. The Parent has established and maintains disclosure controls and procedures (as defined under Rules 13a-15 and 15d-15 under the 1934 Act); such disclosure controls and procedures are designed to ensure that material information relating to the Parent and its subsidiaries is made known to the chief executive officer and chief financial officer of the Parent by others within the Parent or any of its subsidiaries, and such disclosure controls and procedures are reasonably effective to perform the functions for which they were established subject to the limitations of any such control system; the Parent’s auditors and the Audit Committee of the Board of Directors of the Parent have been advised of: (A) any identified significant deficiencies or material weaknesses in the design or operation of internal controls which could adversely affect the Parent’s ability to record, process, summarize and report financial data; and (B) any identified fraud, whether or not material, that involves management or other employees who have a role in the Parent’s internal controls; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.

(xxvii)    Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Parent or any of the Parent’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.

(xxviii)    Tax Law Compliance. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) the Parent and its subsidiaries have filed all necessary federal, state, local and foreign tax returns or have properly requested extensions thereof and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them, and (B) the Parent has made adequate charges, accruals and reserves in accordance with GAAP in the applicable financial statements referred to in Section 1(a)(vi) hereof in respect of all federal, state, local and foreign taxes for all periods as to which the tax liability of the Parent or any of its subsidiaries has not been finally determined.

(xxix)    Insurance. The Parent and each of its subsidiaries is insured by recognized, financially sound institutions with policies in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses including, without limitation, policies covering real property (other than immaterial owned or leased real property) owned or leased by the Parent and its subsidiaries against damage, destruction, acts of vandalism, flood and earthquakes. The Parent has no reason to believe that it or any subsidiary will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its

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business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither the Parent nor any subsidiary has been denied any insurance coverage that it has sought or for which it has applied.

(xxx)    Investment Company Act. Neither the Company nor any Guarantor is required, and, upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus, none of them will be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).

(xxxi)    Absence of Manipulation. Neither the Company nor any Guarantor or affiliate of the Company or any Guarantor has taken or will take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company or the Guarantors to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.

(xxxii)    Compliance with Labor Laws. Except as would not, individually or in the aggregate, result in a Material Adverse Effect, (A) there is (i) no unfair labor practice complaint pending or, to the best of the Parent’s knowledge, threatened against the Parent or any of its subsidiaries before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements pending, or to the best of the Parent’s knowledge, threatened, against the Parent or any of its subsidiaries, (ii) no strike, labor dispute, slowdown or stoppage pending or, to the best of the Parent’s knowledge, threatened against the Parent or any of its subsidiaries and (iii) no union representation question existing with respect to the employees of the Parent or any of its subsidiaries and, to the best of the Parent’s knowledge, no union organizing activities taking place and (B) there has been no violation of any federal, state or local law relating to discrimination in hiring, promotion or pay of employees or of any applicable wage or hour laws.

(xxxiii)    Anti-Corruption. Neither the Parent nor any of its subsidiaries nor, to the knowledge of the Parent, any director, officer, agent, employee or affiliate of the Parent or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), or any other applicable anti-corruption laws, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any government official, including any officer or employee of a foreign government or government-controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or official thereof, or candidate for political office (each, a “Government Official”), or to any other person while knowing that all or some portion of the money or value will be offered, given or promised to a Government Official for the purposes of obtaining or retaining business or securing any other improper advantage, in each case in violation of the FCPA or any other applicable anti-corruption laws; and the Parent, its subsidiaries and, to the knowledge of the Parent, its affiliates have conducted their businesses in compliance with all applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

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(xxxiv)    Money Laundering Laws. The operations of the Parent and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any Governmental Entity involving the Parent or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Parent, threatened.

(xxxv)    OFAC. None of the Parent, its subsidiaries or, to the knowledge of the Parent, any director, officer, agent, employee, affiliate or representative of the Parent or any of its subsidiaries is an individual or entity (“Person”) that is (and, to the knowledge of the Parent, none of the foregoing persons or entities is owned or controlled by a Person that is) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Parent, the Company or any of their respective subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) for the purpose of financing any activities of or business with any Person, or in any country or territory that, at the time of such financing, is the subject of Sanctions or (ii) in any other manner that will, to the Parent’s knowledge, result in a violation by any Person (including any Person participating in the transaction, whether as an underwriter, advisor, investor or otherwise) of Sanctions.

(xxxvi)    Related Party Transactions. No relationship, direct or indirect, exists between or among any of the Parent or any affiliate of the Parent, on the one hand, and any director, officer, member, stockholder, customer or supplier of the Parent or any affiliate of the Parent, on the other hand, which is required by the 1933 Act to be disclosed in a registration statement on Form S-3 which is not so disclosed in the Registration Statement, the General Disclosure Package and the Prospectus. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there are no outstanding loans, advances (except advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Parent or any affiliate of the Parent to or for the benefit of any of the officers or directors of the Parent or any affiliate of the Parent or any of their respective family members.

(xxxvii)     Lending Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, (A) neither the Company nor any Guarantor has any material lending or other relationship with any bank or lending affiliate of any Underwriter and (B) the Company does not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate of any Underwriter.

(xxxviii)    Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package and the Prospectus are based on or derived from sources that the Parent and the Company believe to be reliable and accurate in all material respects on the basis stated therein and represent their good faith estimates that are made on the basis of data derived from such sources.

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(xxxix)    Regulations T, U, X. None of the Company, any Guarantor or any of their respective subsidiaries nor any agent thereof acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.

(xl)    Solvency. Each of the Company and the Guarantors is, and immediately after the Closing Time will be, Solvent. As used herein, the term “Solvent” means, with respect to any person on a particular date, that on such date (A) the fair market value of the assets of such person is greater than the total amount of liabilities (including contingent liabilities) of such person, (B) the present fair salable value of the assets of such person is greater than the amount that will be required to pay the probable liabilities of such person on its debts as they become absolute and matured, (C) such person is able to realize upon its assets and pay its debts and other liabilities, including contingent obligations, as they mature and (D) such person does not have unreasonably small capital.

(xli)    Cybersecurity. Except as would not, individually or in the aggregate, result in a Material Adverse Effect, (A) there has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to any of the Parent’s and its subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Parent and its subsidiaries, and any such data processed or stored by third parties on behalf of the Parent and its subsidiaries), equipment or technology (collectively, “IT Systems and Data”); (B) neither the Parent nor its subsidiaries have been notified of, and each of them have no knowledge of any event or condition that could result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data; and (C) the Parent and its subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards. Except as would not, individually or in the aggregate, result in a Material Adverse Effect, the Parent and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.

(b)    Officers’ Certificates. Any certificate signed by any officer of the Company or any Guarantor and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company or such Guarantor to each Underwriter as to the matters set forth therein.

SECTION 2.    Sale and Delivery to Underwriters; Closing.

(a)    Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company and the Guarantors agree to issue and sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company and the Guarantors, at the price set forth in Schedule A, the aggregate principal amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters as the Representative in its sole discretion shall make to ensure that any sales or purchases are in authorized denominations.

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(b)    Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made through the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, or at such other place as shall be agreed upon by the Representative and the Company, at 9:00 A.M. (New York City time) on August 23, 2021 (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the Company (such time and date of payment and delivery being herein called the “Closing Time”).

Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the Representative for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. The Representative, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.

(c)    Denominations; Registration. Certificates through the book-entry facilities of The Depository Trust Company (the “Depositary”) for the Securities shall be in such denominations and registered in such names as the Representative may request in writing at least one full business day before the Closing Time. The certificates for the Securities will be made available for examination by the Representative in The City of New York (or true facsimiles thereof will be made so available elsewhere) not later than 10:00 A.M. (New York City time) on the business day prior to the Closing Time.

SECTION 3.    Covenants of the Company and the Guarantors. Each of the Company and the Guarantors further covenants and agrees with each Underwriter as follows:

(a)    Compliance with Securities Regulations and Commission Requests. The Parent and the Company, subject to Section 3(b), will comply with the requirements of Rule 430B, and will notify the Representative immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus, including any document incorporated by reference therein or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of the Registration Statement, any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Parent and the Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as they deem necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such

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prospectus. The Parent and the Company will make every reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. The Parent and the Company have paid the required Commission filing fees relating to the Securities in accordance with Rules 456(a) and 457(o) under the 1933 Act Regulations.

(b)    Continued Compliance with Securities Laws. The Parent and the Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Parent and the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Parent and the Company will promptly (A) give the Representative notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Parent and the Company shall not file or use any such amendment or supplement to which the Representative or counsel for the Underwriters shall object. The Parent and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Parent and the Company have given the Representative notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Parent and the Company will give the Representative notice of their intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representative with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.

(c)    Delivery of Registration Statements. The Company shall, upon request, furnish to the Representative and counsel for the Underwriters, without charge, one signed copy of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and one signed copy of all consents and certificates of experts, and will, upon request, also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

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(d)    Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(e)    Blue Sky Qualifications. The Company and the Guarantors will use their best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that neither the Company nor the Guarantors shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.

(f)    Rule 158. The Parent will timely file such reports with the Commission pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act; provided, however, that in no event shall this paragraph (f) require the Parent to file any such report with the Commission earlier than it is otherwise required to so file such report pursuant to the 1934 Act.

(g)    Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”

(h)    The Depositary. The Company will cooperate with the Representative and use its best efforts to permit the Securities to be eligible for clearance and settlement through the facilities of the Depositary.

(i)    Agreement Not to Offer or Sell Additional Securities. During the period of 60 days following the date hereof, the Company and the Guarantors will not, without the prior written consent of the Representative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish a “put equivalent position” within the meaning of Rule 16a-1 under the 1934 Act, or otherwise dispose of, or announce the offering of, or file any registration statement under the 1933 Act in respect of, any debt securities of the Company or the Guarantors or securities exchangeable for or convertible into debt securities of the Company or the Guarantors, in each case other than as contemplated hereby.

(j)    Reporting Requirements. The Parent, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.

(k)    Final Term Sheet; Issuer Free Writing Prospectuses. The Company will prepare a final term sheet (the “Final Term Sheet”), in the form attached as Exhibit C hereto, reflecting the final terms of

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the Securities, in form and substance reasonably satisfactory to the Representative, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two business days after the date hereof; provided that the Company shall furnish the Representative with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representative or counsel to the Underwriters shall have reasonably objected. The Company agrees that, unless it obtains the prior written consent of the Representative, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representative will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule B hereto and any “road show for an offering that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representative as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus, there has occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.

SECTION 4.    Payment of Expenses.

(a)    Expenses. Each of the Company and the Guarantors agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation of the Transaction Documents and the preparation, issuance and delivery of the Securities to the Underwriters, including any issue or transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s and the Guarantors’ counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of the Trustee and any transfer agent or registrar for the Securities, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and one half the cost of aircraft and other transportation chartered in connection with the road show, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the

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Underwriters in connection with, the review by FINRA, if required, of the terms of the sale of the Securities (provided that in no event will such fees and disbursements of counsel pursuant to this clause (viii) exceed $5,000 and in no event will the Company be responsible for any such fees and disbursements of counsel if no such review by FINRA is required), (ix) any fees payable in connection with the rating of the Securities with the ratings agencies, (x) all fees and expenses (including reasonable fees and expenses of counsel) of the Company and the Guarantors in connection with approval of the Securities by the Depositary for “book-entry” transfer, and the performance by the Company and the Guarantors of their respective other obligations under this Agreement, and (xi) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained in the third sentence of Section 1(a)(ii).

(b)    Termination of Agreement. If this Agreement is terminated by the Representative in accordance with the provisions of Section 5, Section 9(a)(i) or (iii) or Section 11 hereof, the Company and the Guarantors shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters; provided that if this Agreement is terminated pursuant to Section 10 hereof, such reimbursement of out-of-pocket expenses shall only be made by the Company and the Guarantors to the non-defaulting Underwriters.

SECTION 5.    Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein or in certificates of any officer of the Company and the Guarantors or any of their subsidiaries delivered pursuant to the provisions hereof, as of the date hereof and as of the Closing Time as though then made and, to the timely performance by the Company and the Guarantors of their covenants and other obligations hereunder, and to each of the following additional conditions:

(a)    Effectiveness of Registration Statement. The Registration Statement has become effective and at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of the Registration Statement, any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes or pursuant to Section 8A of the 1933 Act have been instituted or are pending or, to the Parent’s or the Company’s knowledge, contemplated; and the Parent and the Company have complied with each request (if any) from the Commission for additional information. The Parent and the Company shall have paid the required Commission filing fees relating to the Securities in accordance with Rules 456(a) and 457(o) under the 1933 Act Regulations.

(b)    Opinion of Counsel for Company and Guarantors. At the Closing Time, the Representative shall have received the favorable opinion, dated the date of the Closing Time, of Kulik, Gottesman, Mouton & Siegel, LLP, counsel for the Company and the Guarantors, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, substantially to the effect set forth in Exhibit A hereto.

(c)    Opinion of Special Counsel for Company and Guarantors. At the Closing Time, the Representative shall have received the favorable (i) corporate opinion, (ii) tax opinion and (iii) negative assurance letter of Latham & Watkins LLP, special counsel for the Company and the Guarantors, each dated the date of the Closing Time, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of each such letter for each of the other Underwriters, substantially to the effect set forth in Exhibits B-1, B-2 and B-3 hereto, respectively.

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(d)    Opinion of Counsel for Underwriters. At the Closing Time, the Representative shall have received the favorable opinion and negative assurance letter, each dated the date of the Closing Time, of Davis Polk & Wardwell LLP, counsel for the Underwriters, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Representative. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and the Guarantors and certificates of public officials.

(e)    Officers’ Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Effect, and the Representative shall have received a certificate of the Chief Executive Officer or the President of the Parent and the Company and of the chief financial or chief accounting officer of the Parent and the Company, executed by such officers on behalf of the Parent, the Company and each Guarantor, dated the date of the Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company and each Guarantor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.

(f)    Accountants’ Comfort Letter. At the time of the execution of this Agreement, the Representative shall have received from KPMG LLP a letter, dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.

(g)    Bring-down Comfort Letter. At the Closing Time, the Representative shall have received from KPMG LLP a letter, dated as of the date of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.

(h)    Maintenance of Rating. Since the execution of this Agreement, there shall not have been any decrease in any rating assigned to the Securities or of any securities of the Parent or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.

(i)    Indenture. At the Closing Time, the Company shall have executed and delivered the Base Indenture and the Supplemental Indenture, and the Guarantors shall have executed and delivered the Supplemental Indenture, each in form and substance reasonably satisfactory to the Underwriters, and the Underwriters shall have received executed copies thereof.

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(j)    Additional Documents. On or before the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained.

(k)    Termination of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 15, 16 and 17 shall survive any such termination and remain in full force and effect.

SECTION 6.    Indemnification.

(a)    Indemnification of Underwriters. Each of the Company and the Guarantors, jointly and severally, agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its directors, officers, employees, selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:

(i)    against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or (B) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(ii)    against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company; and

(iii)    against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representative), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;

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provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, any preliminary prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.

(b)    Indemnification of Company, Guarantors and Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, each Guarantor, each of their respective directors, each of their respective officers who signed the Registration Statement, and each person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, any preliminary prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information provided by such Underwriter.

(c)    Actions Against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select one separate counsel (and one local counsel in each jurisdiction) to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with local counsel in each jurisdiction), which shall be selected by the Representative (in the case of counsel representing the Underwriters or their related persons), representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party.

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(d)    Settlements. The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without its written consent, which will not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, liability, claim, damage or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by this Section 6, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request or disputed in good faith the indemnified party’s entitlement to such reimbursement prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is a party or is a potential party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any indemnified party.

SECTION 7.    Contribution. If the indemnification provided for in Section 6 hereof is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

The relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus. The relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors, on the one hand, or by the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take

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account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. The provisions set forth in Section 6 hereof with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 7; provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 6 hereof for purposes of indemnification.

Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.

No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates, directors, officers, employees and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company or any Guarantor, each officer of the Company or any Guarantor who signed the Registration Statement, and each person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company and the Guarantors. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount of Securities set forth opposite their respective names in Schedule A hereto and not joint.

SECTION 8.    Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or the Guarantors or any of their subsidiaries submitted pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its affiliates or selling agents, officers, directors, employees of any person controlling any Underwriter, its officers or directors, or any person controlling the Company or any Guarantor and (ii) delivery of and payment for the Securities.

SECTION 9.    Termination of this Agreement.

(a)    Termination. The Representative may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Effect, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Parent has been suspended or materially limited by the Commission or the New York Stock Exchange, or

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(iv) if trading generally on the New York Stock Exchange or the Nasdaq Global Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.

(b)    Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 11, 15, 16 and 17 shall survive such termination and remain in full force and effect.

SECTION 10.    Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time to purchase the Securities that it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representative shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not fewer than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representative shall not have completed such arrangements within such 24-hour period, then:

(i)    if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or

(ii)    if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Securities to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.

No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.

In the event of any such default which does not result in a termination of this Agreement, either (i) the Representative or (ii) the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.

SECTION 11.    Default by the Company. If the Company shall fail at the Closing Time to sell the principal amount of Securities that it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of any non-defaulting party; provided, however, that the provisions of Sections 1, 4, 6, 7, 8, 11, 15, 16 and 17 shall remain in full force and effect. No action taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such default.

26

SECTION 12.    Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to parties hereto shall be directed as follows:

If to the Underwriters:

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

Facsimile: 212-901-7897

Attention: Legal Department

with a copy to:

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Facsimile: 212-701-5550

Attention: John Crowley, Esq.

If to the Company or the Guarantors:

Kennedy-Wilson Holdings, Inc.

151 S. El Camino Drive

Beverly Hills, California 90212

Facsimile: (310) 887-3410

Attention: Justin Enbody

with a copy to:

Latham & Watkins LLP

355 South Grand Avenue

Los Angeles, CA 90071

Facsimile: (213) 891-8763

Attention: Julian Kleindorfer, Esq.

Any party hereto may change the address or facsimile number for receipt of communications by giving written notice to the others.

SECTION 13.    No Advisory or Fiduciary Relationship. Each of the Company and the Guarantors acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or the Guarantors or any of their subsidiaries, or their respective stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or the Guarantors with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantors or any of their subsidiaries on other matters) and no Underwriter has any obligation to the Company or the Guarantors with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and the Guarantors, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering of the Securities, and the Company and the Guarantors have consulted their own respective legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.

27

This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Guarantors and the Underwriters, or any of them, with respect to the subject matter hereof. The Company and the Guarantors hereby waive and release, to the fullest extent permitted by law, any claims that the Company and the Guarantors may have against the several Underwriters with respect to any breach or alleged breach of fiduciary duty.

SECTION 14.    Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, the Guarantors and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company, the Guarantors and their respective successors and the controlling persons, Affiliates, selling agents, officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company, the Guarantors and their respective successors, and said controlling persons, Affiliates, selling agents, officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

SECTION 15.    Trial by Jury. Each of the Company and the Guarantors (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

SECTION 16.    GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

SECTION 17.    Consent to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail 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 parties 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 in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.

SECTION 18.    TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.

28

SECTION 19.    Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

SECTION 20.    Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

SECTION 21.    Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.

SECTION 22.    Recognition of the U.S. Special Resolution Regimes.

(a)    In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

(b)    In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

For purposes of this Section 22, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

29

SECTION 23.    Compliance with USA PATRIOT Act. In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Guarantors, which information may include the name and addresses of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

[Signature Pages as Follows]

30

If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company and the Guarantors in accordance with its terms.

Very truly yours,
KENNEDY-WILSON, INC.,     as Company
By	/s/ Justin Enbody
	Name:	Justin Enbody
	Title:	Chief Financial Officer

[Signature Page to Underwriting Agreement]

KENNEDY-WILSON HOLDINGS, INC.,     as Parent
By	/s/ Justin Enbody
	Name:	Justin Enbody
	Title:	Chief Financial Officer

[Signature Page to Underwriting Agreement]

K-W Properties, a California corporation

KW BASGF II Manager, LLC, a Delaware limited liability company

KWF Investors I, LLC, a Delaware limited liability company

Kennedy Wilson Overseas Investments, Inc., a Delaware corporation

SG KW Venture I Manager LLC, a Delaware limited liability company

KW Summer House Manager, LLC, a Delaware limited liability company

KW Montclair, LLC, a Delaware limited liability company

KW Serenade Manager, LLC, a Delaware limited liability company

K-W Santiago Inc., a California corporation

KW Redmond Manager, LLC, a Delaware limited liability company

Dillingham Ranch Aina LLC, a Delaware limited liability company

68-540 Farrington, LLC, a Delaware limited liability company

KW Dillingham Aina LLC, a Delaware limited liability company

Kennedy Wilson Fund Management Group, LLC, a California limited liability company

Kennedy-Wilson International, a California corporation

Kennedy-Wilson Tech Ltd., a California corporation

KWP Financial I, a California corporation

Kennedy Wilson Auction Group Inc., a California corporation

KWF Manager IV, LLC, a Delaware limited liability company

KW Ireland, LLC, a Delaware limited liability company

Kennedy Wilson Real Estate Sales & Marketing, a California corporation

KWF Investors IV, LLC, a Delaware limited liability company

Santa Maria Land Partners Manager, LLC, a Delaware limited liability company

KW Investment Adviser, LLC, a Delaware limited liability company

Kennedy-Wilson Capital, a California corporation

KWF Investors VII, LLC, a Delaware limited liability company

KWF Manager VII, LLC, a Delaware limited liability company

KW Residential Capital, LLC, a Delaware limited liability company

KW Boise Plaza, LLC, a Delaware limited liability company

KW EU Loan Partners II, LLC, a Delaware limited liability company

KW Harrington LLC, a Delaware limited liability company

KW 5200 Lankershim Manager, LLC, a Delaware limited liability company

KWF Manager X, LLC, a Delaware limited liability company

KWF Manager XI, LLC, a Delaware limited liability company

KWF Manager XII, LLC, a Delaware limited liability company

KW Real Estate Venture XIII, LLC, a Delaware limited liability company

KWF Manager XIII, LLC, a Delaware limited liability company

KW EU Loan Partners III, LLC, a Delaware limited liability company

KW EU Investors I, LLC, a Delaware limited liability company

KW Richfield Plaza, LLC, a Delaware limited liability company

KW Currier Square Shopping Center, LLC, a Delaware limited liability company

KW Creekview Shopping Center, LLC, a Delaware limited liability company

KW Securities, LLC, a Delaware limited liability company

KW Victory Land Loan, LLC, a Delaware limited liability company

KW Victory Plaza Loan, LLC, a Delaware limited liability company

Country Ridge IX, LLC, a Delaware limited liability company

KW EU Investors VIII, LLC, a Delaware limited liability company

KW Park Santa Fe, LLC, a Delaware limited liability company

KW Cypress, LLC, a Delaware limited liability company

KW Tacoma Condos, LLC, a Delaware limited liability company

KW Desert Ramrod Sponsor, LLC, a Delaware limited liability company

KW 9350 Civic Center Drive, LLC, a Delaware limited liability company

KW Taylor Yard 55, LLC, a Delaware limited liability company

KW Red Cliff Shopping Center, LLC, a Delaware limited liability company

KW Holiday Village Shopping Center, LLC, a Delaware limited liability company

KW Hilltop Manager II, LLC, a Delaware limited liability company

KW Bozeman Investors, LLC, a Delaware limited liability company

KW One Baxter Way GP, LLC, a Delaware limited liability company

KW Riverdale and 36, LLC, a Delaware limited liability company

KW 400 California Member, LLC, a Delaware limited liability company

KW CIG Management Services, LLC, a Delaware limited liability company

KW Terra West Sponsor, LLC, a Delaware limited liability company

KW Hanover Quay, LLC, a Delaware limited liability company

Kennedy Wilson Property Equity VI, LLC, a Delaware limited liability company

Kennedy Wilson Property Services VI, LLC, a Delaware limited liability company

KW LV 3 Sponsor, LLC, a Delaware limited liability company

KW NB LLC, a Delaware limited liability company

KW Camarillo Land, LLC, a Delaware limited liability company

KW 2013EE LLC, a Delaware limited liability company

KW EU PRS Investor, LLC, a Delaware limited liability company

KW Rosewood Premiere, LLC, a Delaware limited liability company

KW River Pointe Premier, LLC, a Delaware limited liability company

KW Kawana Springs, a Delaware limited liability company

KW Quebec Participant, LLC, a Delaware limited liability company

KW Quebec Asset Manager, LLC, a Delaware limited liability company

KW Real Estate II Equity, LLC, a Delaware limited liability company

KW Real Estate II Carry, LLC, a Delaware limited liability company

KW Real Estate II GP, LLC, a Delaware limited liability company

KW Sunset CP Participant, LLC, a Delaware limited liability company

KW Sunset CP Asset Manager, LLC, a Delaware limited liability company

KW CP West Hills Participant, LLC, a Delaware limited liability company

KW CP West Hills Asset Manager, LLC, a Delaware limited liability company

KW Linder Road, LLC, a Delaware limited liability company

KW Seattle Office Portfolio GP, LLC, a Delaware limited liability company

KW CDO Investor, LLC, a Delaware limited liability company

KW Hamilton Landing—Land, LLC, a Delaware limited liability company

KW Rancho Mirage Loan, LLC, a Delaware limited liability company

KW Sunset North LLC, a Delaware limited liability company

KW Heights Investor, LLC, a Delaware limited liability company

KW Burlingame Point Loan, LLC, a Delaware limited liability company

KW Pacifica, LLC, a Delaware limited liability company

KW Riverwalk, LLC, a Delaware limited liability company

KW ABQ, LLC, a Delaware limited liability company

KW F5 Tower, LLC, a Delaware limited liability company

KW Manhattan Beach Studio Loan, LLC, a Delaware limited liability company

KW Golden State Tower Loan, LLC, a Delaware limited liability company

KW RockVue, LLC, a Delaware limited liability company

KW South Main Station, LLC, a Delaware limited liability company

KWF Manager, LLC, a Delaware limited liability company

KW Residences at Harvard, LLC, a Delaware limited liability company

KW Moffett Place, LLC, a Delaware limited liability company

KW The Press, LLC, a Delaware limited liability company

KW Orchard-Trimble Campus, LLC, a Delaware limited liability company

KW 50 West, LLC, a Delaware limited liability company

KW Kohanaiki, LLC, a Delaware limited liability company

KW EU Capital 2, LLC, a Delaware limited liability company

KW EU Capital 3, LLC, a Delaware limited liability company

KW 134th Street Lofts, LLC, a Delaware limited liability company

KW Ashton Parc Villagio, LLC, a Delaware limited liability company

KW SB Manager, LLC, a Delaware limited liability company

KW THE CADENCE, LLC, a Delaware limited liability company

KW WATERLINE APARTMENTS, LLC, a Delaware limited liability company

KW 360 Spear, LLC, a Delaware limited liability company

KW Advanta Office Commons, LLC, a Delaware limited liability company

KW South Bay Galleria, LLC, a Delaware limited liability company

KW Pine 43, LLC, a Delaware limited liability company

KW Eisley Sponsor, LLC, a Delaware limited liability company

KW LPC Investor, LLC, a Delaware limited liability company

KW OXFORD NORTH, LLC, a Delaware limited liability company

KW ALILA NAPA VALLEY, LLC, a Delaware limited liability company

as Subsidiary Guarantors
By	/s/ Justin Enbody
	Name:	Justin Enbody
	Title:	Authorized Person

CONFIRMED AND ACCEPTED,
as of the date first above written:
BOFA SECURITIES, INC.
By	/s/ Reagan C. Philipp
	Authorized Signatory
Name:	Reagan Philipp
Title:	Director

For itself and as Representative of the other Underwriters named in Schedule A hereto.

SCHEDULE A

The purchase price to be paid to the Company by the Underwriters for the Securities shall be 99.000% of the principal amount thereof, plus accrued interest, if any, from August 23, 2021 to the Closing Time.

Name of Underwriter	Principal Amount of Securities
BofA Securities, Inc.	$	195,000,000.00
J.P. Morgan Securities LLC	$	150,000,000.00
Deutsche Bank Securities Inc.	$	61,500,000.00
U.S. Bancorp Investments, Inc.	$	61,500,000.00
Fifth Third Securities, Inc.	$	54,000,000.00
Goldman Sachs & Co. LLC	$	30,000,000.00
PNC Capital Markets LLC	$	30,000,000.00
Evercore Group L.L.C.	$	18,000,000.00
Total	$	600,000,000

Sch A-1

SCHEDULE B

Issuer General Use Free Writing Prospectuses

Final Term Sheet

Exhibit A

FORM OF OPINION OF COMPANY’S AND GUARANTORS’ COUNSEL

TO BE DELIVERED PURSUANT TO SECTION 5(b)

1.    The Company is a corporation under the DGCL. Based solely on certificates from public officials, we confirm that the Company is validly existing and in good standing under the laws of the State of Delaware.

2.    Based solely on certificates from public officials, we confirm that each Guarantor is duly qualified as a foreign corporation, limited partnership or limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a material adverse change in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of each of the Guarantors and its subsidiaries, considered as one entity.

3.    Based solely on certificates from public officials, we confirm that the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a material adverse change in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity.

4.    Each of the Guarantors is a corporation or limited liability company. Based solely on certificates from public officials, we confirm that each of the Guarantors has been duly incorporated or formed and is validly existing as a corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation.

5.    The Underwriting Agreement has been duly authorized by all necessary corporate or limited liability company action of the Company and each of the Guarantors, as applicable, and the Underwriting Agreement has been duly executed and delivered by the Company and each of the Guarantors.

6.    Each of the Base Indenture and Supplemental Indenture No. 2030-1 has been duly authorized by all necessary corporate action of the Company, and has been duly executed and delivered by the Company.

Sch B-1

7.    Supplemental Indenture No. 2030-1 has been duly authorized by all necessary corporate or limited liability company action, as applicable, of each of the Guarantors, and has been duly executed and delivered by each of the Guarantors.

8.    The Notes have been duly authorized by all necessary corporate action of the Company.

9.    The Guarantees have been duly authorized by all necessary corporate or limited liability company action, as applicable, of each Guarantor.

10.    The execution and delivery of the Underwriting Agreement, the Indentures and the Securities, and the issuance and sale of the Notes by the Company and the Guarantees by each of the Guarantors to you and the other Underwriters pursuant to the Underwriting Agreement, do not on the date hereof:

a.    result in the breach of or a default under (i) the Specified Agreements, or (ii) the Company’s Governing Documents and the Guarantor’s Organizational Documents or Formation Documents; or

b.    violate any judgment, order or decree of any court.

11.    There are no pending actions, suits or proceedings against or affecting the Company, the Guarantors, or any of their respective subsidiaries that, if determined adversely to the Company, the Guarantors or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company or the Guarantors to perform their obligations under the Indentures, the Notes, the Guarantees or the Underwriting Agreement, or which are otherwise material in the context of the sale of the Securities; and no such actions, suits or proceedings are threatened or, to our knowledge, contemplated.

Exhibit B-2-2

EXHIBIT A

Identified Guarantors

1. Kennedy-Wilson Holdings, Inc., a Delaware corporation

2. K-W Properties, a California corporation

3. KW BASGF II Manager, LLC, a Delaware limited liability company

4. KWF Investors I, LLC, a Delaware limited liability company

5. Kennedy Wilson Overseas Investments, Inc., a Delaware corporation

6. SG KW Venture I Manager LLC, a Delaware limited liability company

7. KW Summer House Manager, LLC, a Delaware limited liability company

8. KW Montclair, LLC, a Delaware limited liability company

9. KW Serenade Manager, LLC, a Delaware limited liability company

10. K-W Santiago Inc., a California corporation

11. KW Redmond Manager, LLC, a Delaware limited liability company

12. Dillingham Ranch Aina LLC, a Delaware limited liability company

13. 68-540 Farrington, LLC, a Delaware limited liability company

14. KW Dillingham Aina LLC, a Delaware limited liability company

15. Kennedy Wilson Fund Management Group, LLC, a California limited liability company

16. Kennedy-Wilson International, a California corporation

17. Kennedy-Wilson Tech Ltd., a California corporation

18. KWP Financial I, a California corporation

19. Kennedy Wilson Auction Group Inc., a California corporation

20. KWF Manager IV, LLC, a Delaware limited liability company

21. KW Ireland, LLC, a Delaware limited liability company

22. Kennedy Wilson Real Estate Sales & Marketing, a California corporation

23. KWF Investors IV, LLC, a Delaware limited liability company

24. Santa Maria Land Partners Manager, LLC, a Delaware limited liability company

25. KW Investment Adviser, LLC, a Delaware limited liability company

26. Kennedy-Wilson Capital, a California corporation

27. KWF Investors VII, LLC, a Delaware limited liability company

28. KWF Manager VII, LLC, a Delaware limited liability company

29. KW Residential Capital, LLC, a Delaware limited liability company

30. KW Boise Plaza, LLC, a Delaware limited liability company

31. KW EU Loan Partners II, LLC, a Delaware limited liability company

32. KW Harrington LLC, a Delaware limited liability company

Exhibit B-2-3

33. KW 5200 Lankershim Manager, LLC, a Delaware limited liability company

34. KWF Manager X, LLC, a Delaware limited liability company

35. KWF Manager XI, LLC, a Delaware limited liability company

36. KWF Manager XII, LLC, a Delaware limited liability company

37. KW Real Estate Venture XIII, LLC, a Delaware limited liability company

38. KWF Manager XIII, LLC, a Delaware limited liability company

39. KW EU Loan Partners III, LLC, a Delaware limited liability company

40. KW EU Investors I, LLC, a Delaware limited liability company

41. KW Richfield Plaza, LLC, a Delaware limited liability company

42. KW Currier Square Shopping Center, LLC, a Delaware limited liability company

43. KW Creekview Shopping Center, LLC, a Delaware limited liability company

44. KW Securities, LLC, a Delaware limited liability company

45. KW Victory Land Loan, LLC, a Delaware limited liability company

46. KW Victory Plaza Loan, LLC, a Delaware limited liability company

47. Country Ridge IX, LLC, a Delaware limited liability company

48. KW EU Investors VIII, LLC, a Delaware limited liability company

49. KW Park Santa Fe, LLC, a Delaware limited liability company

50. KW Cypress, LLC, a Delaware limited liability company

51. KW Tacoma Condos, LLC, a Delaware limited liability company

52. KW Desert Ramrod Sponsor, LLC, a Delaware limited liability company

53. KW 9350 Civic Center Drive, LLC, a Delaware limited liability company

54. KW Taylor Yard 55, LLC, a Delaware limited liability company

55. KW Red Cliff Shopping Center, LLC, a Delaware limited liability company

56. KW Holiday Village Shopping Center, LLC, a Delaware limited liability company

57. KW Hilltop Manager II, LLC, a Delaware limited liability company

58. KW 2013J LLC, a Delaware limited liability company

59. KW Bozeman Investors, LLC, a Delaware limited liability company

60. KW One Baxter Way GP, LLC, a Delaware limited liability company

61. KW Riverdale and 36, LLC, a Delaware limited liability company

62. KW 400 California Member, LLC, a Delaware limited liability company

63. KW CIG Management Services, LLC, a Delaware limited liability company

64. KW Terra West Sponsor, LLC, a Delaware limited liability company

65. KW Hanover Quay, LLC, a Delaware limited liability company

66. Kennedy Wilson Property Equity VI, LLC, a Delaware limited liability company

67. Kennedy Wilson Property Services VI, LLC, a Delaware limited liability company

Exhibit B-2-4

68. KW LV 3 Sponsor, LLC, a Delaware limited liability company

69. KW NB LLC, a Delaware limited liability company

70. KW Camarillo Land, LLC, a Delaware limited liability company

71. KW 2013EE LLC, a Delaware limited liability company

72. KW EU PRS Investor, LLC, a Delaware limited liability company

73. KW Rosewood Premiere, LLC, a Delaware limited liability company

74. KW River Pointe Premier, LLC, a Delaware limited liability company

75. KW Kawana Springs, a Delaware limited liability company

76. KW Quebec Participant, LLC, a Delaware limited liability company

77. KW Quebec Asset Manager, LLC, a Delaware limited liability company

78. KW Real Estate II Equity, LLC, a Delaware limited liability company

79. KW Real Estate II Carry, LLC, a Delaware limited liability company

80. KW Real Estate II GP, LLC, a Delaware limited liability company

81. KW Sunset CP Participant, LLC, a Delaware limited liability company

82. KW Sunset CP Asset Manager, LLC, a Delaware limited liability company

83. KW CP West Hills Participant, LLC, a Delaware limited liability company

84. KW CP West Hills Asset Manager, LLC, a Delaware limited liability company

85. KW Linder Road, LLC, a Delaware limited liability company

86. KW Seattle Office Portfolio GP, LLC, a Delaware limited liability company

87. KW CDO Investor, LLC, a Delaware limited liability company

88. KW Hamilton Landing—Land, LLC, a Delaware limited liability company

89. KW Rancho Mirage Loan, LLC, a Delaware limited liability company

90. KW Sunset North LLC, a Delaware limited liability company

91. KW Heights Investor, LLC, a Delaware limited liability company

92. KW Burlingame Point Loan, LLC, a Delaware limited liability company

93. KW Pacifica, LLC, a Delaware limited liability company

94. KW Riverwalk, LLC, a Delaware limited liability company

95. KW ABQ, LLC, a Delaware limited liability company

96. KW F5 Tower, LLC, a Delaware limited liability company

97. KW Manhattan Beach Studio Loan, LLC, a Delaware limited liability company

98. KW Golden State Tower Loan, LLC, a Delaware limited liability company

99. KW RockVue, LLC, a Delaware limited liability company

100. KW South Main Station, LLC, a Delaware limited liability company

101. KWF Manager, LLC, a Delaware limited liability company

102. KW Residences at Harvard, LLC, a Delaware limited liability company

Exhibit B-2-5

103. KW Moffett Place, LLC, a Delaware limited liability company

104. KW The Press, LLC, a Delaware limited liability company

105. KW Orchard-Trimble Campus, LLC, a Delaware limited liability company

106. KW 50 West, LLC, a Delaware limited liability company

107. KW Kohanaiki, LLC, a Delaware limited liability company

108. KW EU Capital 2, LLC, a Delaware limited liability company

109. KW EU Capital 3, LLC, a Delaware limited liability company

110. KW 134th Street Lofts, LLC, a Delaware limited liability company

111. KW Ashton Parc Villagio, LLC, a Delaware limited liability company

112. KW SB Manager, LLC, a Delaware limited liability company

113. KW THE CADENCE, LLC, a Delaware limited liability company

114. KW WATERLINE APARTMENTS, LLC, a Delaware limited liability company

115. KW 360 Spear, LLC, a Delaware limited liability company

116. KW Advanta Office Commons, LLC, a Delaware limited liability company

117. KW South Bay Galleria, LLC, a Delaware limited liability company

118. KW Pine 43, LLC, a Delaware limited liability company

119. KW Eisley Sponsor, LLC, a Delaware limited liability company

120. KW LPC Investor, LLC, a Delaware limited liability company

121. KW OXFORD NORTH, LLC, a Delaware limited liability company

122. KW ALILA NAPA VALLEY, LLC, a Delaware limited liability company

Exhibit B-2-6

EXHIBIT B

Specified Agreements

1.    The Second Amended and Restated Credit Agreement dated as of March 25, 2020, by and among Kennedy-Wilson, Inc., Kennedy-Wilson Holdings, Inc., certain subsidiaries of Kennedy-Wilson Holdings, Inc. party thereto, the lenders party thereto and Bank of America, N.A., as administrative agent and letter of credit issuer.

2.    Certificate of Designation Establishing the 5.75% Series A Cumulative Perpetual Preferred Stock of Kennedy-Wilson Holdings, Inc.

3.    Supplemental Indenture No. 1, dated as of March 25, 2014, among Kennedy-Wilson, Inc., the subsidiary guarantor parties thereto and Wilmington Trust, National Association, as trustee.

4.    Joinder Agreement, dated as of January 19, 2021 among Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Bank of America, N.A.

5.    Supplemental Indenture No. 2029-1, among Kennedy-Wilson, Inc., as Issuer, Kennedy-Wilson Holdings, Inc., certain subsidiaries of the Issuer party thereto, as subsidiary guarantors, and Wilmington Trust, National Association, as trustee, including the form of 4.750% Senior Notes due 2029.

6.    Supplemental Indenture No. 2031-1, among Kennedy-Wilson, Inc., as Issuer, Kennedy-Wilson Holdings, Inc., certain subsidiaries of the Issuer party thereto, as subsidiary guarantors, and Wilmington Trust, National Association, as trustee, including the form of 5.000% Senior Notes due 2031.

7.    Supplemental Indenture No. 2029-2, among Kennedy-Wilson, Inc., as Issuer, Kennedy-Wilson Holdings, Inc., certain subsidiaries of the Issuer party thereto, as subsidiary guarantors, and Wilmington Trust, National Association, as trustee, including the form of 4.750% Senior Notes due 2029.

8.    Supplemental Indenture No. 2031-2, among Kennedy-Wilson, Inc., as Issuer, Kennedy-Wilson Holdings, Inc., certain subsidiaries of the Issuer party thereto, as subsidiary guarantors, and Wilmington Trust, National Association, as trustee, including the form of 5.000% Senior Notes due 2031.

9.    Joinder Agreement, dated as of August 4, 2021 among Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Bank of America, N.A.

Exhibit B-2-7

Exhibit B-1

FORM OF CORPORATE OPINION OF COMPANY’S AND GUARANTORS’ SPECIAL

COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(c)

1.    To the extent the laws of the State of New York govern, each of the Underwriting Agreement, the Base Indenture and the Supplemental Indenture has been duly executed and delivered by the Company and each of the respective Identified Guarantors party thereto. The Indenture is the legally valid and binding agreement of the Company and each Identified Guarantor, enforceable against the Company and each Identified Guarantor in accordance with its terms.

2.    When the Notes have been executed, issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, the Guarantees of the respective Identified Guarantors will be the legally valid and binding agreement of the respective Identified Guarantors, enforceable against the respective Identified Guarantors in accordance with their terms.

3.    To the extent the laws of the State of New York govern, the Notes have been duly executed by the Company. When issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, the Notes will be the legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

4.    The execution and delivery of the Underwriting Agreement, the Indenture and the Notes by the Company, and the execution and delivery of the Underwriting Agreement and the Indenture by the Identified Guarantors, and the issuance and sale of the Notes by the Company and the Guarantees by each of the Identified Guarantors to you and the other Underwriters pursuant to the Underwriting Agreement, do not on the date hereof:

(i)    result in the breach of or a default under any of the Specified Agreements by the Company or any Identified Guarantor;

(ii)    violate any federal or New York or California statute, rule or regulation applicable to the Company or the Identified Guarantors; or

(iii)    require any consents, approvals or authorizations to be obtained by the Company or any Identified Guarantor from, or any registrations, declarations or filings to be made by the Company or the Identified Guarantors with, any governmental authority under any federal or New York or California statute, rule or regulation applicable to the Company or the Identified Guarantors, on or prior to the date hereof that have not been obtained or made.

5.    The Registration Statement has become effective under the Act. With your consent, based solely on a review of a list of stop orders on the Commission’s website at http://www.sec.gov/litigation/stoporders.shtml as of [        ] a.m. Eastern time on [closing date], we confirm that no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings therefor have been initiated by the Commission. The Preliminary Prospectus has been filed in accordance with Rule 424(b) under the Act, the Prospectus has been filed in accordance with Rules 424(b) and 430B under the Act, and the specified IFWP has been filed in accordance with Rule 433(d) under the Act.

Exhibit B-2-8

6.    The Registration Statement at December 12, 2019, and the Prospectus, as of its date, each appeared on their face to be appropriately responsive in all material respects to the applicable form requirements for registration statements on Form S-3 under the Act and the rules and regulations of the Commission thereunder; it being understood, however, that we express no view with respect to Regulation S-T, Form T-1 or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, we have assumed that the statements made in the Registration Statement and the Prospectus are correct and complete.

7.    The statements in the Preliminary Prospectus, the Specified IFWP, and the Prospectus under the caption “Description of the Notes,” “Description of Other Indebtedness—Unsecured Credit Facility” and “Description of Other Indebtedness—4.750% Senior Notes due 2029 and 5.000% Senior Notes due 2031,” insofar as they purport to describe or summarize certain provisions of the Notes, the Guarantees, or the Indenture, or of the other indebtedness described therein, and under the captions “Underwriting,” insofar as they purport to describe or summarize certain provisions of the Underwriting Agreement, are accurate descriptions or summaries in all material respects.

8.    The Base Indenture has been qualified under the Trust Indenture Act of 1939, as amended.

9.    Each of the Company and the Identified Guarantors is not, and immediately after giving effect to the sale of the Securities in accordance with the Underwriting Agreement and the application of the proceeds as described in the Prospectus under the caption “Use of Proceeds,” will not be required to be, registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended. In delivering the foregoing opinion, we have relied as to factual matters and with your consent on one or more certificates of an officer of the Company and the Identified Guarantors.

Exhibit B-2-9

SCHEDULE 1

Identified Guarantors

1. Kennedy-Wilson Holdings, Inc., a Delaware corporation

2. K-W Properties, a California corporation

3. KW BASGF II Manager, LLC, a Delaware limited liability company

4. KWF Investors I, LLC, a Delaware limited liability company

5. Kennedy Wilson Overseas Investments, Inc. a Delaware corporation

6. SG KW Venture I Manager LLC, a Delaware limited liability company

7. KW Summer House Manager, LLC, a Delaware limited liability company

8. KW Montclair, LLC, a Delaware limited liability company

9. KW Serenade Manager, LLC, a Delaware limited liability company

10. K-W Santiago Inc., a California corporation

11. KW Redmond Manager, LLC, a Delaware limited liability company

12. Dillingham Ranch Aina LLC, a Delaware limited liability company

13. 68-540 Farrington, LLC, a Delaware limited liability company

14. KW Dillingham Aina LLC, a Delaware limited liability company

15. Kennedy Wilson Fund Management Group, LLC, a California limited liability company

16. Kennedy-Wilson International, a California corporation

17. Kennedy-Wilson Tech, Ltd., a California corporation

18. KWP Financial I, a California corporation

19. Kennedy Wilson Auction Group Inc., a California corporation

20. KWF Manager IV, LLC, a Delaware limited liability company

21. KW Ireland, LLC, a Delaware limited liability company

22. Kennedy Wilson Real Estate Sales & Marketing, a California corporation

23. KWF Investors IV, LLC, a Delaware limited liability company

24. Santa Maria Land Partners Manager, LLC, a Delaware limited liability company

Exhibit B-2-10

25. KW Investment Adviser, LLC, a Delaware limited liability company

26. Kennedy-Wilson Capital, a California corporation

27. KWF Investors VII, LLC, a Delaware limited liability company

28. KWF Manager VII, LLC, a Delaware limited liability company

29. KW Residential Capital, LLC, a Delaware limited liability company

30. KW Boise Plaza, LLC, a Delaware limited liability company

31. KW EU Loan Partners II, LLC, a Delaware limited liability company

32. KW Harrington LLC, a Delaware limited liability company

33. KW 5200 Lankershim Manager, LLC, a Delaware limited liability company

34. KWF Manager X, LLC, a Delaware limited liability company

35. KWF Manager XI, LLC, a Delaware limited liability company

36. KWF Manager XII, LLC, a Delaware limited liability company

37. KW Real Estate Venture XIII, LLC, a Delaware limited liability company

38. KWF Manager XIII, LLC, a Delaware limited liability company

39. KW EU Loan Partners III, LLC, a Delaware limited liability company

40. KW EU Investors I, LLC, a Delaware limited liability company

41. KW Richfield Plaza, LLC, a Delaware limited liability company

42. KW Currier Square Shopping Center, LLC, a Delaware limited liability company

43. KW Creekview Shopping Center, LLC, a Delaware limited liability company

44. KW Securities, LLC, a Delaware limited liability company

45. KW Victory Land Loan, LLC, a Delaware limited liability company

46. KW Victory Plaza Loan, LLC, a Delaware limited liability company

47. Country Ridge IX, LLC, a Delaware limited liability company

48. KW EU Investors VIII, LLC, a Delaware limited liability company

49. KW Park Santa Fe, LLC, a Delaware limited liability company

50. KW Cypress, LLC, a Delaware limited liability company

Exhibit B-2-11

51. KW Tacoma Condos, LLC, a Delaware limited liability company

52. KW Desert Ramrod Sponsor, LLC, a Delaware limited liability company

53. KW Red Cliff Shopping Center, LLC, a Delaware limited liability company

54. KW Holiday Village Shopping Center, LLC, a Delaware limited liability company

55. KW 9350 Civic Center Drive, LLC, a Delaware limited liability company

56. KW Taylor Yard 55, LLC, a Delaware limited liability company

57. KW Hilltop Manager II, LLC, a Delaware limited liability company

58. KW Bozeman Investors, LLC, a Delaware limited liability company

59. KW One Baxter Way GP, LLC, a Delaware limited liability company

60. KW Riverdale and 36, LLC, a Delaware limited liability company

61. KW 400 California Member, LLC, a Delaware limited liability company

62. KW CIG Management Services, LLC, a Delaware limited liability company

63. KW Terra West Sponsor, LLC, a Delaware limited liability company

64. KW Hanover Quay, LLC, a Delaware limited liability company

65. Kennedy Wilson Property Equity VI, LLC, a Delaware limited liability company

66. Kennedy Wilson Property Services VI, LLC, a Delaware limited liability company

67. KW LV 3 Sponsor, LLC, a Delaware limited liability company

68. KW NB LLC, a Delaware limited liability company

69. KW Camarillo Land, LLC, a Delaware limited liability company

70. KW 2013EE LLC, a Delaware limited liability company

71. KW EU PRS Investor, LLC, a Delaware limited liability company

72. KW Rosewood Premiere, LLC, a Delaware limited liability company

73. KW River Pointe Premier, LLC, a Delaware limited liability company

74. KW Kawana Springs, a Delaware limited liability company

75. KW Quebec Participant, LLC, a Delaware limited liability company

76. KW Quebec Asset Manager, LLC, a Delaware limited liability company

Exhibit B-2-12

77. KW Real Estate II Equity, LLC, a Delaware limited liability company

78. KW Real Estate II Carry, LLC, a Delaware limited liability company

79. KW Real Estate II GP, LLC, a Delaware limited liability company

80. KW Sunset CP Participant, LLC, a Delaware limited liability company

81. KW Sunset CP Asset Manager, LLC, a Delaware limited liability company

82. KW CP West Hills Participant, LLC, a Delaware limited liability company

83. KW CP West Hills Asset Manager, LLC, a Delaware limited liability

84. KW Linder Road, LLC, a Delaware limited liability

85. KW Seattle Office Portfolio GP, LLC, a Delaware limited liability company

86. KW CDO Investor, LLC, a Delaware limited liability company

87. KW Hamilton Landing—Land, LLC, a Delaware limited liability company

88. KW Rancho Mirage Loan, LLC, a Delaware limited liability company

89. KW Sunset North, LLC, a Delaware limited liability company

90. KW Heights Investor, LLC, a Delaware limited liability company

91. KW Burlingame Point Loan, LLC, a Delaware limited liability company

92. KW Pacifica, LLC, a Delaware limited liability company

93. KW Riverwalk, LLC, a Delaware limited liability company

94. KW ABQ, LLC, a Delaware limited liability company

95. KW F5 Tower, LLC, a Delaware limited liability company

96. KW Manhattan Beach Studio Loan, LLC, a Delaware limited liability company

97. KW Golden State Tower Loan, LLC, a Delaware limited liability company

98. KW RockVue, LLC, a Delaware limited liability company

99. KW South Main Station, a Delaware limited liability company,

100. KWF Manager, LLC, a Delaware limited liability company,

101. KW Residences at Harvard, LLC, a Delaware limited liability company

102. KW Moffett Place, LLC, a Delaware limited liability company

Exhibit B-2-13

103. KW The Press, LLC, a Delaware limited liability company

104. KW Orchard-Trimble Campus, LLC, a Delaware limited liability company

105. KW 50 West, LLC, a Delaware limited liability company

106. KW Kohanaiki, LLC, a Delaware limited liability company

107. KW EU Capital 2, LLC, a Delaware limited liability company

108. KW EU Capital 3, LLC, a Delaware limited liability company

109. KW 134th Street Lofts, LLC, a Delaware limited liability company

110. KW Ashton Parc Villagio, LLC, a Delaware limited liability company

111. KW SB Manager, LLC, a Delaware limited liability company

112. KW THE CADENCE, LLC, a Delaware limited liability company

113. KW WATERLINE APARTMENTS, LLC, a Delaware limited liability company

114. KW 360 Spear, LLC, a Delaware limited liability company

115. KW Advanta Office Commons, LLC, a Delaware limited liability company

116. KW South Bay Galleria, LLC, a Delaware limited liability company

117. KW Pine 43, LLC, a Delaware limited liability company

118. KW LPC Investor, LLC, a Delaware limited liability company

119. KW OXFORD NORTH, LLC, a Delaware limited liability company

120. KW ALILA NAPA VALLEY, LLC

Exhibit B-2-14

SCHEDULE 2

SPECIFIED AGREEMENTS

1. Indenture, dated as of March 25, 2014, between Kennedy-Wilson Inc., as Issuer, and Wilmington Trust, National Association, as trustee.

2. Supplemental Indenture No. 2029-1, dated as of February 11, 2021, among Kennedy-Wilson, Inc., Kennedy-Wilson Holdings, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee.

3. Supplemental Indenture No. 2031-1, dated as of February 11, 2021, among Kennedy-Wilson, Inc., Kennedy-Wilson Holdings, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee.

4. Joinder Agreement, dated as of April 18, 2017, among Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Bank of America, N.A.

5. Joinder Agreement, dated as of February 16, 2018 among Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Bank of America, N.A.

6. Joinder Agreement, dated as of November 13, 2019 among Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Bank of America, N.A.

7. Joinder Agreement, dated as of January 19, 2021 among Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Bank of America, N.A.

8. Second Amended and Restated Credit Agreement, dated March 25, 2020, among Kennedy-Wilson, Inc., as borrower, Kennedy-Wilson Holdings, Inc. and certain subsidiaries of Kennedy-Wilson Holdings, Inc. from time to time party thereto as guarantors, the lenders from time to time party thereto, Bank of America, N.A., as administrative agent and Bank of America, N.A. and JPMorgan Chase Bank, N.A., as letter of credit issuers.

9. Supplemental Indenture No. 2029-2, dated as of August 4, 2021, among Kennedy-Wilson, Inc., Kennedy-Wilson Holdings, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee.

10. Supplemental Indenture No. 2031-2, dated as of August 4, 2021, among Kennedy-Wilson, Inc., Kennedy-Wilson Holdings, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee.

11. Joinder Agreement, dated as of August 4, 2021 among Kennedy-Wilson, Inc., the subsidiary guarantors named therein and Bank of America, N.A.

Exhibit B-2-15

Exhibit B-2

FORM OF TAX OPINION OF COMPANY’S AND GUARANTORS’ SPECIAL COUNSEL

TO BE DELIVERED PURSUANT TO SECTION 5(c)

Based on such facts and subject to the qualifications, assumptions and limitations set forth herein and in the Registration Statement, the Preliminary Prospectus and the Prospectus, we hereby confirm that the statements in the Registration Statement, the Preliminary Prospectus and the Prospectus under the caption “Material U.S. Federal Income Tax Considerations,” insofar as such statements purport to constitute summaries of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.

Exhibit B-2-16

Exhibit B-3

FORM OF NEGATIVE ASSURANCE LETTER OF COMPANY’S AND GUARANTORS’

SPECIAL COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(c)

The primary purpose of our professional engagement was not to establish or confirm factual matters or financial or quantitative information. Therefore, we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in, or incorporated by reference in, the Registration Statement, the Preliminary Prospectus, the Specified IFWP, the Prospectus or the Incorporated Documents (except to the extent expressly set forth in numbered paragraph 7 of our letter to you of even date pertaining to general transaction matters and in our letter to you of even date with respect to certain tax matters), and have not made an independent check or verification thereof (except as aforesaid). However, in the course of acting as special counsel to the Company in connection with the preparation by the Company of the Registration Statement, the Preliminary Prospectus, the Specified IFWP and the Prospectus, we reviewed the Registration Statement, the Preliminary Prospectus, the Specified IFWP, the Prospectus and the Incorporated Documents and participated in conferences and telephone conversations with officers and other representatives of the Parent and the Company, the independent public accountants for the Parent, your representatives and your counsel, during which conferences and conversations the contents of the Registration Statement, the Preliminary Prospectus, the Specified IFWP and the Prospectus (and portions of certain of the Incorporated Documents) and related matters were discussed. We also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants, and oral and written statements of officers and other representatives of the Company and others as to the existence and consequence of certain factual and other matters.

Based on our participation, review and reliance as described above, we advise you that no facts came to our attention that caused us to believe that:

• the Registration Statement, as of [pricing date], including the information deemed to be a part of the Registration Statement pursuant to Rule 430B under the Act (together with the Incorporated Documents at that time), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;

• the Preliminary Prospectus, as of [    ] [a.m./p.m.] New York City Time on [pricing date] (together with the Incorporated Documents at that time), when taken together with the Specified IFWP, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or

• the Prospectus, as of its date and as of the date hereof (together with the Incorporated Documents as of those respective dates), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,

it being understood that we express no belief with respect to the financial statements, schedules, or other financial data included or incorporated by reference in, or omitted from, the Registration Statement, the Preliminary Prospectus, the Specified IFWP, the Prospectus or the Incorporated Documents.

Exhibit B-3-1

Exhibit C

PRICING TERM SHEET

Pricing Term Sheet	Issuer Free Writing Prospectus
Dated August 9, 2021	Filed Pursuant to Rule 433
	Registration Statement No. 333-235473
	Supplementing the Preliminary
	Prospectus Supplement dated August 9, 2021
	(To Prospectus dated December 12, 2019)

Kennedy-Wilson, Inc.

4.75% Senior Notes due 2030

The information in this pricing term sheet relates to the offering (the “Offering”) of the 4.75% Senior Notes due 2030 of Kennedy-Wilson, Inc. (the “Issuer”) and should be read together with the preliminary prospectus supplement dated August 9, 2021 relating to the Offering (the “Preliminary Prospectus Supplement”) and the prospectus dated December 12, 2019, including the documents incorporated by reference therein, relating to Registration Statement No. 333-235473. The information in this pricing term sheet supersedes the information in the Preliminary Prospectus Supplement and the accompanying prospectus to the extent inconsistent with the information in the Preliminary Prospectus Supplement and the accompanying prospectus. Terms used but not defined herein have the meanings given in the Preliminary Prospectus Supplement.

Issuer	Kennedy-Wilson, Inc. (the “Issuer”).
Securities	4.75% Senior Notes due 2030 (the “Notes”).
Principal Amount	$600,000,000.
Format	SEC Registered.
Maturity	February 1, 2030.
Coupon (Interest Rate)	4.75% per annum.
Public Offering Price	100% of the principal amount, plus accrued interest, if any, from August 23, 2021, if settlement occurs after that date.
Yield to Maturity	4.75% per annum.
Interest Payment Dates	March 1 and September 1, beginning on March 1, 2022. In addition, February 1, 2030 will be regular interest payment date for the notes.
Regular Record Dates	February 15 and August 15; provided, however, that the Regular Record Date for the Interest Payment Date occurring on February 1, 2030 will be January 15, 2030.

Exhibit C-1

Optional Redemption Callable during the 12-month period commencing on September 1 of the years, and at the prices (expressed as percentages of the principal amount), set forth below corresponding to the applicable series of Notes:

Period	Redemption Price
2024		102.375	%
2025		101.188	%
2026 and thereafter		100.000	%

Optional Redemption with Equity Proceeds	Prior to September 1, 2024, up to 40.0% at a redemption price equal to 104.75% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date.
Make-Whole Redemption	At any time prior to September 1, 2024, the Issuer may redeem the Notes, in whole or in part, at a “make-whole” premium, plus accrued and unpaid interest to the redemption date. The “make-whole” will be determined as described in the Preliminary Prospectus Supplement under the caption “Description of the Notes—Optional Redemption.”
Trade Date	August 9, 2021.
Settlement Date	August 23, 2021 (T+10).
	The Issuer expects that delivery of the Notes will be made to investors on or about the Settlement Date, which will be the tenth business day following the Trade Date (such settlement being referred to as “T+10”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market are required, subject to certain exceptions, to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to sell their Notes before the second business day prior to the Settlement Date will be required, by virtue of the fact that the Notes initially settle in T+10, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Those purchasers should consult their advisors.
Use of Proceeds	The Issuer estimates that the net cash proceeds from the sale of the Notes will be approximately $593.7 million, after deducting underwriting discounts and commissions and estimated offering expenses to be paid by the Issuer.
	The Issuer intends to use the net proceeds, together with cash on hand, to redeem in full all of the outstanding KWE Bonds (£219.8 million outstanding principal amount), including accrued and unpaid interest and related premiums and expenses, and to repay approximately $289.3 million of the outstanding principal balance under its revolving line of credit.

Exhibit C-2

Investment by Affiliated Party	An entity affiliated with one of our directors has indicated its intent to purchase up to $10.0 million in aggregate principal amount of Notes.
CUSIP / ISIN Numbers	489399 AN5 / US489399AN56.
Minimum Denominations	$2,000 and integral multiples of $1,000 in excess thereof.
Joint Book-Running Managers	BofA Securities, Inc. J.P. Morgan Securities LLC Deutsche Bank Securities Inc. U.S. Bancorp Investments, Inc. Fifth Third Securities, Inc. Goldman Sachs & Co. LLC
Co-Managers	PNC Capital Markets LLC
	Evercore Group L.L.C.

* * *

The Issuer has filed a registration statement (including the Preliminary Prospectus Supplement and an accompanying prospectus dated December 12, 2019) with the Securities and Exchange Commission (the “SEC”) for the Offering to which this communication relates. Before you invest, you should read the Preliminary Prospectus Supplement and the accompanying prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and the Offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, copies may be obtained from BofA Securities, Inc. by mail at NC1-004-03-43, 200 North College Street, 3rd Floor, Charlotte, NC 28255-0001, Attention: Prospectus Department, email at dg.prospectus_requests@bofa.com or call toll-free at (800) 294-1322.

ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.

Exhibit C-3

EX-4.1

Exhibit 4.1

Kennedy-Wilson, Inc.

INDENTURE

Dated as of March 25, 2014

Wilmington Trust, National Association

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		5
ARTICLE II. THE SECURITIES			6
Section 2.1.	Issuable in Series		6
Section 2.2.	Establishment of Terms of Series of Securities		6
Section 2.3.	Execution and Authentication		9
Section 2.4.	Registrar and Paying Agent		9
Section 2.5.	Paying Agent to Hold Money in Trust		10
Section 2.6.	Holder Lists		10
Section 2.7.	Transfer and Exchange		11
Section 2.8.	Mutilated, Destroyed, Lost and Stolen Securities		11
Section 2.9.	Outstanding Securities		12
Section 2.10.	Treasury Securities		12
Section 2.11.	Temporary Securities		13
Section 2.12.	Cancellation		13
Section 2.13.	Defaulted Interest		13
Section 2.14.	Global Securities		13
Section 2.15.	CUSIP Numbers		14
ARTICLE III. REDEMPTION			15
Section 3.1.	Notice to Trustee		15
Section 3.2.	Selection of Securities to be Redeemed		15
Section 3.3.	Notice of Redemption		15
Section 3.4.	Effect of Notice of Redemption		16
Section 3.5.	Deposit of Redemption Price		16
Section 3.6.	Securities Redeemed in Part		16
ARTICLE IV. COVENANTS			17
Section 4.1.	Payment of Principal and Interest		17
Section 4.2.	SEC Reports		17
Section 4.3.	Compliance Certificate		17
Section 4.4.	Stay, Extension and Usury Laws		18
Section 4.5.	Corporate Existence		18
ARTICLE V. SUCCESSORS			18
Section 5.1.	When Company May Merge, Etc.		18
Section 5.2.	Successor Corporation Substituted		19

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ARTICLE VI. DEFAULTS AND REMEDIES		19
Section 6.1.	Events of Default	19
Section 6.2.	Acceleration of Maturity; Rescission and Annulment	20
Section 6.3.	Collection of Indebtedness and Suits for Enforcement by Trustee	21
Section 6.4.	Trustee May File Proofs of Claim	22
Section 6.5.	Trustee May Enforce Claims Without Possession of Securities	22
Section 6.6.	Application of Money Collected	23
Section 6.7.	Limitation on Suits	23
Section 6.8.	Unconditional Right of Holders to Receive Principal and Interest	24
Section 6.9.	Restoration of Rights and Remedies	24
Section 6.10.	Rights and Remedies Cumulative	24
Section 6.11.	Delay or Omission Not Waiver	24
Section 6.12.	Control by Holders	24
Section 6.13.	Waiver of Past Defaults	25
Section 6.14.	Undertaking for Costs	25
ARTICLE VII. TRUSTEE		26
Section 7.1.	Duties of Trustee	26
Section 7.2.	Rights of Trustee	27
Section 7.3.	Individual Rights of Trustee	28
Section 7.4.	Trustee’s Disclaimer	28
Section 7.5.	Notice of Defaults	28
Section 7.6.	Reports by Trustee to Holders	29
Section 7.7.	Compensation and Indemnity	29
Section 7.8.	Replacement of Trustee	30
Section 7.9.	Successor Trustee by Merger, Etc.	31
Section 7.10.	Eligibility; Disqualification	31
Section 7.11.	Preferential Collection of Claims Against Company	31
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE		31
Section 8.1.	Satisfaction and Discharge of Indenture	31
Section 8.2.	Application of Trust Funds; Indemnification	32
Section 8.3.	Legal Defeasance of Securities of any Series	33
Section 8.4.	Covenant Defeasance	34
Section 8.5.	Repayment	35
Section 8.6.	Reinstatement	36
ARTICLE IX. AMENDMENTS AND WAIVERS		36
Section 9.1.	Without Consent of Holders	36
Section 9.2.	With Consent of Holders	38
Section 9.3.	Limitations	38
Section 9.4.	Compliance with Trust Indenture Act	39
Section 9.5.	Revocation and Effect of Consents	39
Section 9.6.	Notation on or Exchange of Securities	39
Section 9.7.	Trustee Protected	39

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ARTICLE X. MISCELLANEOUS		40
Section 10.1.	Trust Indenture Act Controls	40
Section 10.2.	Notices	40
Section 10.3.	Communication by Holders with Other Holders	41
Section 10.4.	Certificate and Opinion as to Conditions Precedent	41
Section 10.5.	Statements Required in Certificate or Opinion	41
Section 10.6.	Rules by Trustee and Agents	42
Section 10.7.	Legal Holidays	42
Section 10.8.	No Recourse Against Others	42
Section 10.9.	Counterparts	42
Section 10.10.	Governing Law	42
Section 10.11.	No Adverse Interpretation of Other Agreements	43
Section 10.12.	Successors	43
Section 10.13.	Severability	43
Section 10.14.	Table of Contents, Headings, Etc.	43
Section 10.15.	Securities in a Foreign Currency	43
Section 10.16.	Judgment Currency	44
Section 10.17.	Force Majeure	44
ARTICLE XI. SINKING FUNDS		45
Section 11.1.	Applicability of Article	45
Section 11.2.	Satisfaction of Sinking Fund Payments with Securities	45
Section 11.3.	Redemption of Securities for Sinking Fund	45
ARTICLE XII. GUARANTEES		46
Section 12.1.	Guarantees	46

iii

KENNEDY-WILSON, INC.

Reconciliation to Trust Indenture Act of 1939

§ 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 shall not, for any purpose, be deemed to be part of the Indenture.

iv

Indenture dated as of March 25, 2014 between Kennedy-Wilson, Inc., a Delaware corporation (the “Company”), and Wilmington Trust, National Association (the “Trustee”).

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

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.1. Definitions.

“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the 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 Secretary or an Assistant 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 or a legal holiday in The City of New York (or in connection with any payment, the place of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.

“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.

“Code” means the Internal Revenue Code of 1986, as amended.

“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 thereof.

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

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

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

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

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

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

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

“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 accounting principles generally accepted 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.

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“Guarantee” means a guarantee of any Securities by a Guarantor as contemplated by Article XII, provided that the term “Guarantee,” when used with respect to any Security or with respect to any Series of Securities means a guarantee of such Security or of such Series of Securities, respectively, by a Guarantor of such Security or such Series of Securities, respectively, as contemplated by Article XII.

“Guarantor” means any person that issues a Guarantee of any Security of any Series, either on the date such Security is issued or after such date, in accordance with or pursuant to the terms of this Indenture, provided that, upon the release and discharge of such person from its Guarantee in accordance with or pursuant to this Indenture, such person shall cease to be a Guarantor.

“Guarantor Order” means a written order signed in the name of the Guarantor by an Officer thereof.

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

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

The term “interest” means, with respect to any Discount Security which by its terms bears interest only after Maturity, 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 Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary, and any Vice President of the Company (in the case of an Officer’s Certificate to be delivered by a Guarantor, and in the case of a Guarantor Order, of such Guarantor).

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

“Opinion of Counsel” means a written opinion of legal counsel who is acceptable to the Trustee. Such counsel may be an employee of or counsel to the Company or any Guarantor.

The term “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.

The term “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.

“Prospectus” means the base prospectus, dated November 1, 2013, of the Company together with any supplement(s) thereto filed with the Securities and Exchange Commission in connection with the offer and sale of Securities to be issued pursuant hereto.

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

“SEC” means the Securities and Exchange Commission.

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

“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” means, with respect to any payment of principal of, or any premium or interest on, any Security, the date on which such payment 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 depository 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 depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.

4

Section 1.2. Other Definitions.

TERM	DEFINED IN
	SECTION
“Bankruptcy Law”	6.1
“Custodian”	6.1
“Event of Default”	6.1
“Judgment Currency”	10.16
“Legal Holiday”	10.7
“mandatory sinking fund payment”	11.1
“Market Exchange Rate”	10.15
“New York Banking Day”	10.16
“Notice Agent”	2.4
“optional sinking fund payment”	11.1
“Paying Agent”	2.4
“Registrar”	2.4
“Required Currency”	10.16
“successor person”	5.1

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, if such indenture securities are guaranteed by any Guarantor, each such Guarantor) 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:

5

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

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

(c) “or” is not exclusive;

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

(e) provisions apply to successive events and transactions.

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, supplemental indenture or 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 2.2.22) 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);

6

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

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

2.2.6. the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the 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 or premium, if any, and interest on the Securities of the Series will be made;

7

2.2.15. if payments of the principal of or premium, if any, or interest 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 the principal of or premium, if any, or interest 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 set forth in Articles IV or V which applies to Securities of the Series;

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

2.2.21. the provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the 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. if applicable, the terms of any Guarantee of any Securities of such Series; and

2.2.23. any other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series or any Guarantees of any Securities of 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.

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.

8

Section 2.3. Execution and Authentication.

An Officer shall sign the Securities for the Company by manual or facsimile signature.

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

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

The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officer’s Certificate, upon receipt by the Trustee of 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 Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.

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

The Trustee may appoint an authenticating agent acceptable to the 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 and Paying 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

9

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.

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.

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.

Section 2.6. Holder Lists.

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of 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.

10

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 fifteen days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.

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 its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

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

Upon the issuance of any new Security under this Section, the 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.

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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.

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, 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, subject to Section 2.10.

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, any Guarantor of Securities of such Series or any Affiliate of the Company or any such Guarantor 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.

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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.

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 (subject to the record retention requirement 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 10 days before the special record date, the Company shall mail 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

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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.

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

“This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.”

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

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

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

Section 2.15. CUSIP Numbers.

The 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.

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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 elects to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 15 days before the redemption date.

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

Section 3.3. Notice of Redemption.

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

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

(a) the redemption date;

(b) the redemption price;

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

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(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, if any, number of the Securities to be redeemed; 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 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 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.

Section 3.4. Effect of Notice of Redemption.

Once notice of redemption is mailed as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. 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 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.

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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 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.

To the extent any Securities of a Series are outstanding, the Company shall deliver to the Trustee within 15 days after it actually files them with the SEC (regardless of when the same is or was required to be filed with the SEC pursuant to the Exchange Act or otherwise) copies of the reports which the Company is required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act; provided, however, that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received, or is currently seeking, confidential treatment by the SEC; provided further, that each such report will be deemed to be so delivered to the Trustee if the Company files such report with the SEC through the SEC’s EDGAR database (or any successor thereto). The Company also shall comply with the other provisions of TIA §314(a).

Delivery of reports, information and documents to the Trustee under this Section 4.2 are 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 their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

Section 4.3. Compliance Certificate.

To the extent any Securities of a Series are outstanding, the Company shall 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 Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her knowledge the Company 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).

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

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Section 4.4. Stay, Extension and Usury Laws.

The Company and each Guarantor covenants (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 each Guarantor (to the extent they may lawfully do so) hereby expressly waive all benefit or advantage of any such law and covenant 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.

Section 4.5. Corporate Existence.

Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and rights (charter and statutory); provided, however, that the Company shall not be required to preserve any such right if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders.

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 person or the successor person (if other than the Company) is a person organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes 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 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.

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Section 5.2. Successor Corporation Substituted.

Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation 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 person has 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.

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 30^th day of such period); or

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

(c) default in the deposit of any sinking fund payment, if, when and as due by the terms of the Securities of that Series, and the continuance of such default for a period of 60 days; or

(d) default in the performance or breach of any covenant or warranty of the Company (or, in the case the Securities of that Series are subject to a Guarantee, the Guarantor of such Guarantee) in this Indenture (other than defaults pursuant to paragraphs (a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of 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 at least 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; or

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(e) if the Securities of such Series are subject to a Guarantee of a Guarantor, such Guarantee shall for any reason cease to be, or shall for any reason be asserted in writing by such Guarantor or the Company not to be, in full force and effect and enforceable in accordance with its terms, except to the extent contemplated or permitted by this Indenture or the terms of the Securities of such Series;

(f) the Company 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; or

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

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

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

(iii) orders the liquidation of the Company,

and the order or decree remains unstayed and in effect for 60 days; or

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

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

Section 6.2. Acceleration of Maturity; Rescission and Annulment.

If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d) or (e)) then in every such case the Trustee or the Holders of not less than 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 any premium and accrued and unpaid interest 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

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principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified amount) of, and any premium and accrued and unpaid interest on, all outstanding Securities of the applicable Series 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 if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal, premium 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:

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

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

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

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

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company 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 or any other obligor upon such Securities, wherever situated.

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

Section 6.4. Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the 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 and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

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

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

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

Section 6.5. Trustee May Enforce Claims Without Possession of Securities.

All rights of action and claims under this Indenture, the Securities or any Guarantee 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.

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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 any applicable Guarantor, as the case may be.

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,

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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 any premium and interest 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 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:

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

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

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

(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 waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of, or any premium or interest on, any Security of such Series. 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 or any Guarantor, 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).

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ARTICLE VII.

TRUSTEE

Section 7.1. Duties of Trustee.

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

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

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

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

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

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

(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.

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(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 Registrar and any authenticating agent shall be entitled to the protections and immunities as are set forth in paragraphs (e), (f) and (g) of this Section and in Section 7.2, each with respect to the Trustee.

Section 7.2. Rights of Trustee.

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

(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate 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, provided that the Trustee’s conduct does not constitute willful misconduct or negligence.

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

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

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

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

(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.

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, any Guarantor or any Affiliate of the Company or any Guarantor with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.

Section 7.4. Trustee’s Disclaimer.

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

Section 7.5. Notice of Defaults.

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

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Section 7.6. Reports by Trustee to Holders.

Within 60 days after each May 15 of each year, 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 May 15, 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 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 one 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.

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.

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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 mail 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.

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Section 7.9. Successor Trustee by Merger, Etc.

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

Section 7.10. Eligibility; Disqualification.

This Indenture shall always have a Trustee who satisfies the requirements of TIA § 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 or Guarantor Order cease to be of further effect (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 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 not theretofore delivered to the Trustee for cancellation:

(1) have become due and payable, or

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

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

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

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and the Company or any Guarantor(s), 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 sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;

(b) the Company or any Guarantor(s) have paid or caused to be paid all other sums payable hereunder by the Company; and

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

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

Section 8.2. Application of Trust Funds; Indemnification.

(a) Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the 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 8.3 or 8.4.

(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 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 or the relevant Guarantor(s), as applicable, from time to time upon Company Order or Guarantor Order, as applicable, 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 public accountants or investment bank expressed in a

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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 and each Guarantor 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 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, 2.7, 2.8, 8.2, 8.3 and 8.5; and

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

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(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;

(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 or, if applicable, the Guarantor(s) shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company or such Guarantor(s), as applicable, have 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 or, if applicable, the Guarantor(s) shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company or such Guarantor(s), as applicable, with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or such Guarantor(s), as applicable; and

(i) the Company or, if applicable, the Guarantor(s) 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 (and, if such Securities are subject to a Guarantee, the Guarantors thereof) 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, 4.5, and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2.18 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:

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

(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;

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

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

(f) the Company or, if applicable, the Guarantor(s) 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.

Subject to applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company (or, if applicable, the relevant Guarantor(s)) 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 or, if applicable, the relevant Guarantor(s) for payment as general creditors unless an applicable abandoned property law designates another person.

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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 or any Guarantor(s) have 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 and the applicable Guarantor(s), if any, shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE IX.

AMENDMENTS AND WAIVERS

Section 9.1. Without Consent of Holders.

The Company, the applicable Guarantor(s), if any, 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 evidence the succession of another person to the Company or, if applicable, any Guarantor and the assumption by such successor person of the covenants of the Company or such Guarantor, as applicable, herein or pursuant hereto and in the Securities or the Guarantees of such Guarantor, as applicable;

(c) to secure or provide additional security for all or any Securities of any Series;

(d) to add to the covenants of the Company or, if applicable, any Guarantor for the benefit of the Holders of all or any Securities of any Series or to surrender any right or power conferred upon the Company or, if applicable, any Guarantor with regard to all or any Securities of any Series;

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

(f) to make any change that does not materially adversely affect the rights of any Holder;

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(g) to provide for the issuance of and establish the form, terms and conditions of Securities of any Series and any Guarantees thereof, as permitted hereby;

(h) 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;

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

(j) to amend the provisions of this Indenture relating to the transfer and legending of Securities; provided, however, that (i) compliance herewith as so amended would not result in Securities being transferred in violation of the Securities Act or any applicable securities law; and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Securities, except as required by law;

(k) to add any additional Events of Default for the benefit of the Holders of all or any Securities of any Series;

(l) to add to, change or eliminate any provision hereof in respect of all or any Securities of any Series or any Guarantees thereof, provided that such addition, change or elimination shall either (A) (i) not apply to any Security of any Series or any Guarantee thereof that was created prior to the execution and delivery of such supplemental indenture; and (ii) not modify the rights of the Holder of any such Security with respect to such provision; or (B) become effective only when there is no Security outstanding;

(m) in the case of any Securities that, by their terms, may be converted into securities or other property (other than Securities of the same Series and of like tenor), to (A) make provisions with respect to adjustments to the applicable conversion rate of such Securities as required or permitted by this Indenture and the terms of such Securities; or (B) permit or facilitate the issuance, payment or conversion of such Securities;

(n) to add any person as a Guarantor of all or any Securities of any Series, which Securities were not theretofore subject to any Guarantee, or to add additional Guarantors of all or any Securities of any Series;

(o) to evidence the release and discharge of any Guarantor from its obligations under its Guarantees and its obligations hereunder in respect of any Securities, in each case in accordance with this Indenture and the terms of such Securities; or

(p) to conform the text of this Indenture or any Securities of any Series or any Guarantee to the description of this Indenture, such Securities or such Guarantee contained in the Prospectus relating to such Securities, provided that such supplement shall apply only to such Securities or Guarantee.

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Section 9.2. With Consent of Holders.

The Company, the applicable Guarantor(s), if any, 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, 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 or any Guarantor of Securities of such Series with any provision of this Indenture or the Securities or the applicable Guarantee 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 mail to the Holders of Securities affected thereby, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.

Section 9.3. Limitations.

Without the consent of each 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 of, or premium, if any, on, 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 any premium or interest 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);

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

(i) in the case of any Security that is subject to a Guarantee, release the Guarantor of such Guarantee from any of its obligations under such Guarantee, except in accordance with the terms of this Indenture and such Security;

(j) make any change in the ranking or priority of any Security or any Guarantee thereof that would adversely affect the Holders of such Security; or

(k) in the case of any Security that provides that the Holder may require the Company to repurchase or convert such Security, impair such Holder’s right to require such repurchase or effect such conversion of such Security in accordance with this Indenture and the terms of such Security.

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 (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.

Section 9.6. Notation on or Exchange of Securities.

The Trustee may 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 request new Securities of that Series that reflect the amendment or waiver.

Section 9.7. Trustee Protected.

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully

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protected in relying upon, an Officer’s Certificate or an Opinion of Counsel or both complying with Section 10.4. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture that adversely affects its rights.

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

if to the Company or any Guarantor:

Kennedy-Wilson, Inc.

9701 Wilshire Boulevard, Suite 700

Beverly Hills, California 90212

Attention: Justin Enbody, Chief Executive Officer

Telephone: (310) 887-6400

with a copy to:

Latham & Watkins LLP

355 South Grand Avenue,

Los Angeles, CA 90071

Attention: Julian T.H. Kleindorfer, Esq.

Telephone: 213-485-1234

if to the Trustee:

Wilmington Trust, National Association

50 South Sixth Street/Suite 1290

Minneapolis, MN 55402

Attention: Corporate Capital Markets—Kennedy-Wilson Administrator

Fax: 612-217-5651

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

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Any notice or communication to a Holder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a notice or communication to a 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 mailed 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 mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

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

Section 10.3. Communication by Holders with Other Holders.

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;

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

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

Section 10.6. Rules by Trustee and Agents.

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

Section 10.7. Legal Holidays.

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

Section 10.8. No Recourse Against Others.

A director, officer, employee or stockholder (past or present), as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company or such Guarantor under the Securities 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.

Section 10.10. Governing Law.

THIS INDENTURE, THE SECURITIES AND EACH GUARANTEE, IF ANY, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).

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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, any Guarantor or any Subsidiary of the Company or of any Guarantor. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 10.12. Successors.

All agreements of the Company in, or of any Guarantor pursuant to, this Indenture and the Securities or Guarantee, as applicable, shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.

Section 10.13. Severability.

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

Section 10.14. Table of Contents, Headings, Etc.

The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

Section 10.15. Securities in a Foreign Currency.

Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated more than one currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be determined by converting any such other currency into a currency that is designated upon issuance of any particular Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall be at the spot rate for the purchase of the designated currency as published in the The Financial Times in the “Currency Rates” section (of, 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.

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

Section 10.16. Judgment Currency.

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

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 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.

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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 and 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

45

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 Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.

ARTICLE XII.

GUARANTEES

Section 12.1. Guarantees.

Any Series of Securities may be guaranteed by one or more Guarantors. The terms and the form of any such Guarantee shall be established in the manner contemplated by Section 2.2 hereof for such Series of Securities; provided, however, that, prior to the authentication and delivery upon original issuance of any Series of Securities that are to be so guaranteed, the Company and the Trustee and each person that shall be an initial Guarantor of such Series of Securities shall execute and deliver a supplemental indenture hereto pursuant to Section 9.1 hereof, whereby such person shall become a Guarantor under this Indenture with respect to such Series of Securities.

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

KENNEDY-WILSON, INC.
By:	/s/ Kent Mouton
	Name:	Kent Mouton
	Its:	Executive Vice President

[Signature Page to Base Indenture]

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
By:	/s/ Jane Schweiger
	Name: Jane Schweiger
	Its: Vice President

[Signature Page to Base Indenture]

EX-4.2

Exhibit 4.2

EXECUTION VERSION

KENNEDY-WILSON, INC.,

as Issuer

KENNEDY-WILSON HOLDINGS, INC.,

as Parent

THE SUBSIDIARY GUARANTOR PARTIES HERETO

and

WILMINGTON TRUST, NATIONAL ASSOCIATION

as Trustee

SUPPLEMENTAL INDENTURE NO. 2030-1

Dated as of August 23, 2021

to

INDENTURE

Dated as of March 25, 2014

4.75% Senior Notes due 2030

TABLE OF CONTENTS

		Page
I.	DEFINITIONS AND INCORPORATION BY REFERENCE		1
	1.01 Definitions		1
	1.02 Other Definitions		32
	1.03 Incorporation by Reference of Trust Indenture Act		32
	1.04 Rules of Construction		32
II.	THE SECURITIES		33
	2.01 Execution and Authentication of Notes		33
	2.02 Registrar, Paying Agent and Authenticating Agent		33
	2.03 Payment; Currency		34
	2.04 Security		34
	2.05 Form and Dating; Depositary		34
	2.06 Interest Payment and Record Dates		35
	2.07 Maturity Date		35
	2.08 Ranking		35
	2.09 Exchange for Securities Other Than Global Securities		35
	2.10 Additional Notes		36
	2.11 Amendments to the Base Indenture		36
III.	REDEMPTION		36
	3.01 Optional Redemption		36
	3.02 Notice of Redemption		38
	3.03 Conditional Redemptions		38
	3.04 Securities Redeemed in Part		38
IV.	COVENANTS		38
	4.01 Fundamental Change Offer		38
	4.02 Limitation on Indebtedness		41
	4.03 Limitation on Restricted Payments		44
	4.04 Limitation on Restrictions on Distributions from Restricted Subsidiaries		50
	4.05 Limitation on Sales of Assets and Subsidiary Stock		52
	4.06 Limitation on Affiliate Transactions		54
	4.07 Limitation on Liens		56
	4.08 Limitation on Sale/Leaseback Transactions		56
	4.09 Future Guarantors		57
	4.10 SEC Reports		57
	4.11 Designation of Restricted and Unrestricted Subsidiaries		58
	4.12 Compliance Certificates		60
	4.13 Existence		60

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	4.14 Payment of Taxes and Other Claims	60
	4.15 Maintenance of Properties and Insurance	60
	4.16 Suspension of Applicability of Certain Covenants upon Achieving Certain Ratings	61
V.	SUCCESSORS	62
	5.01 When Issuer May Merge, etc.	62
	5.02 When Subsidiary Guarantors May Merge, etc	63
	5.03 When the Parent May Merge, Etc	64
VI.	DEFAULTS AND REMEDIES	64
	6.01 Events of Default	64
	6.02 Acceleration; Rescission and Annulment	66
	6.03 Limitation on Suits	66
	6.04 Control by Holders	67
	6.05 Application of Money Collection	67
	6.06 Restoration of Rights and Remedies	67
VII.	TRUSTEE	68
	7.01 Duties of Trustee	68
	7.02 Notice of Defaults	68
	7.03 Amendments to the Base Indenture	68
VIII.	DEFEASANCE; SATISFACTION AND DISCHARGE	69
	8.01 Discharge of Obligations of the Issuer and the Guarantors	69
	8.02 Legal Defeasance	70
	8.03 Covenant Defeasance	72
	8.04 Application of Trust money	72
	8.05 Repayment to Issuer	72
	8.06 Reinstatement	73
	8.07 Indemnification of Trustee	73
IX.	AMENDMENTS	73
	9.01 Without Consent of Holders	73
	9.02 With Consent of Holders	74
	9.03 Consents as to Substance of Amendments	75
	9.04 Notice of Amendments; Effectiveness	75
	9.05 Effect of Consent	75
	9.06 Consent Fees	76
	9.07 Trustee Entitled to Officer’s Certificate and Opinion of Counsel	76

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X.	GUARANTIES	76
	10.01 The Guaranties	76
	10.02 Guaranty Unconditional	77
	10.03 Discharge; Reinstatement	77
	10.04 Waiver by the Guarantors	78
	10.05 Subrogation and Contribution	78
	10.06 Stay of Acceleration	78
	10.07 Limitation on Amount of Guaranty	78
	10.08 Execution and Delivery of Guaranty	78
	10.09 Release of Guaranty	79
XI.	MISCELLANEOUS	80
	11.01 Notices	80
	11.02 Judgment Currency	80
	11.03 Trust Indenture Act Controls	80
	11.04 Duplicate Originals	80
	11.05 Governing Law; Submission to Jurisdiction	80
	11.06 No Adverse Interpretation of Other Agreements	80
	11.07 Successors	81
	11.08 Separability	81
	11.09 Table of Contents, Headings, etc.	81
	11.10 Calculations in Respect of the Notes	81
	11.11 No Personal Liability	81

Exhibit A	-	Form of Global Note
Exhibit B	-	Form of Legend for Global Note
Exhibit C	-	Form of Supplemental Indenture for Future Guarantors

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SUPPLEMENTAL INDENTURE NO. 2030-1 (the “Supplemental Indenture”), dated as of August 23, 2021, among Kennedy-Wilson, Inc., as issuer (the “Issuer”), Kennedy-Wilson Holdings, Inc., as parent (the “Parent”), the Subsidiary Guarantors (as defined herein) party hereto and Wilmington Trust, National Association, as trustee (the “Trustee”).

WITNESSETH THAT:

WHEREAS, the Issuer and the Trustee have executed and delivered a base indenture, dated as of March 25, 2014 (as amended, supplemented or otherwise modified from time to time with respect to the Notes (as defined below), the “Base Indenture,” and, together with this Supplemental Indenture, as amended, supplemented or otherwise modified from time to time, the “Indenture”) to provide for the future issuance of the Issuer’s debt securities to be issued from time to time in one or more series; and

WHEREAS, pursuant to the terms of the Base Indenture, the Issuer desires to provide for the establishment of a Series of its Notes, to be titled as its “4.75% Senior Notes due 2030” (the “Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture;

NOW, THEREFORE:

Each party hereto agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Notes.

I.    DEFINITIONS AND INCORPORATION BY REFERENCE

1.01    DEFINITIONS.

Capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Base Indenture. The following definitions supplement, and, to the extent inconsistent with, replace the definitions in Article I of the Base Indenture:

“Adjusted Treasury Rate” means, with respect to any Redemption Date and as provided by the Issuer, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H. 15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after September 1, 2024, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date, in each case calculated on the third Business Day immediately preceding the date that the applicable redemption notice is first mailed or, if the Notes are held in the form of one or more Global Securities, delivered electronically, in each case, plus one half of one percent (0.50%).

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“Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing. For purposes of Sections 4.03, 4.06 and 4.05 only, “Affiliate” shall also mean any beneficial owner of Capital Stock representing ten percent (10%) or more of the total voting power of the Voting Stock (on a fully diluted basis) of the Issuer or of rights or warrants to purchase such Capital Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence hereof. Solely for purposes of Section 4.06, the term “Affiliate” shall be deemed to exclude Fairfax Financial Holdings Limited, a corporation organized under the laws of Canada, or any subsidiary or affiliate thereof (collectively, “Fairfax”).

“Applicable Premium” means with respect to a Note at any Redemption Date, as provided by the Issuer, the greater of (1) one percent (1.00%) of the principal amount of such Note on such Redemption Date and (2) the excess of (A) the present value at such Redemption Date of (i) the redemption price of such Note assuming such Note were redeemed on September 1, 2024 (such redemption price being set forth in Section 3.01(A)), exclusive of any accrued and unpaid interest, plus (ii) all required remaining scheduled interest payments due on such Note through September 1, 2024 (but excluding accrued and unpaid interest, if any, to the Redemption Date), computed using a discount rate equal to the Adjusted Treasury Rate, over (B) the principal amount of such Note on such Redemption Date.

“Asset Disposition” means any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Issuer or any Restricted Subsidiary, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a “disposition”), of:

(1)    any shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares or shares required by applicable law to be held by a Person other than the Issuer or a Restricted Subsidiary);

(2)    all or substantially all the assets of any division or line of business of the Issuer or any Restricted Subsidiary; or

(3)    any other assets of the Issuer or any Restricted Subsidiary outside of the ordinary course of business of the Issuer or such Restricted Subsidiary (excluding, for the avoidance of doubt, Capital Stock of the Issuer),

other than, in the case of clauses (1), (2) and (3) above,

(A)    a disposition by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to a Restricted Subsidiary;

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(B)    for purposes of Section 4.05 only, a disposition that constitutes a Restricted Payment permitted by Section 4.03 or a Permitted Investment;

(C)    any sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

(D)    a disposition of Temporary Cash Investments in the ordinary course of business;

(E)    the disposition of property or assets that are obsolete, damaged or worn out;

(F)    the lease or sublease of office space in the ordinary course of business;

(G)    the sale of interests or investments in real estate or related assets and related personal property, or loans secured by real estate, in each case by an Investment Subsidiary or Co-investment Vehicle;

(H)    the issuance, sale or transfer of Capital Stock of any Restricted Subsidiary to employees of the Parent, the Issuer or any Restricted Subsidiary pursuant to incentive plans or other compensation arrangements approved by the Board of Directors; and

(I)    a disposition of assets with a fair market value of less than twenty five million dollars ($25,000,000) (a “de minimis disposition”);

provided, however, that a disposition of all or substantially all the assets of the Issuer and its Restricted Subsidiaries taken as a whole will be governed by Section 4.01 and/or Article V and not by Section 4.05.

“Attributable Debt” in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate borne by the Notes, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/ Leaseback Transaction (including any period for which such lease has been extended); provided, however, that if such Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capital Lease Obligation.”

“Audit Committee” means the Audit Committee of the Issuer or any committee thereof duly authorized to act on behalf of such Committee.

“Average Life” means, as of the date of determination, with respect to any Indebtedness, the quotient obtained by dividing:

(1)    the sum of the products of the number of years from the date of determination to the dates of each successive scheduled principal payment of or redemption or similar payment with respect to such Indebtedness multiplied by the amount of such payment by

(2)    the sum of all such payments.

“Bank Indebtedness” means all Obligations pursuant to the Credit Agreement.

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“Base Indenture” has the meaning ascribed to it in the preamble hereto.

“Board of Directors” means the Board of Directors of the Issuer or any committee thereof duly authorized to act on behalf of such Board.

“Business Day” means each day other than a Saturday, Sunday or a day on which commercial banking institutions are authorized or required by law to close in New York City or the place of payment.

“Capital Lease Obligation” means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. For purposes of Section 4.07, a Capital Lease Obligation will be deemed to be secured by a Lien on the property being leased. For the avoidance of doubt, Capital Lease Obligations will not include ground leases of real property entered into in the ordinary course of business of the Issuer or its Restricted Subsidiaries.

“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, whether outstanding at the Issue Date or issued thereafter, including any Preferred Stock, but excluding any debt securities convertible into such equity (or convertible into any combination of cash and such equity based on the value of such equity).

“Change of Control” means the occurrence of any of the following:

(1)    any “person” or “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than thirty five percent (35%) (or, in the case of any Permitted Holder, fifty percent (50%)) of the total voting power of the Voting Stock of the Parent;

(2)    individuals who on the Issue Date constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Parent was approved by a vote of a majority of the directors of the Parent then still in office who were either directors on the Issue Date or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of the Parent then in office;

(3)    the adoption of a plan relating to the liquidation or dissolution of the Parent;

(4)    the merger or consolidation of the Parent with or into another Person or the merger of another Person with or into the Parent, or the sale of all or substantially all the consolidated assets of the Parent, to another Person, other than a transaction following which (A) in the case of a merger or consolidation transaction, holders of securities that represented one hundred percent (100%) of the Voting Stock of the Parent immediately prior to such transaction

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(or other securities into which such securities are converted as part of such merger or consolidation transaction) own, directly or indirectly, at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and (B) in the case of a sale of assets transaction, the transferee Person becomes the obligor in respect of the Notes and a Subsidiary of the transferor of such assets; or

(5)    (i) the Parent ceases to beneficially own, directly or indirectly, at least ninety percent (90%) of the Capital Stock of the Issuer; or (ii) any “person” or “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than thirty five percent (35%) (or, in the case of any Permitted Holder, fifty percent (50%)) of the total voting power of the Voting Stock of the Issuer.

For purposes of determining beneficial ownership under clause (1) above, no Permitted Holder shall be deemed to be a “person” or “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) with Fairfax.

“Code” means the Internal Revenue Code of 1986, as amended.

“Co-investment Vehicle” shall mean an entity (other than a Restricted Subsidiary) formed for the purpose of investing principally, directly or indirectly, in (i) real estate related assets (including Indebtedness (or participations therein) primarily secured by real estate or equity interests in entities, directly or indirectly, primarily owning real estate or related assets) or (ii) unsecured loans (or participations therein) that are part of a loan pool, more than ninety percent (90%) of the aggregate principal balance of which falls within the preceding clause (i).

“Common Stock” shall mean the common stock of the Parent.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Notes from the Redemption Date to September 1, 2024 (or, if such date is not a Business Day, the next Business Day), that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity most nearly equal to September 1, 2024.

“Comparable Treasury Price” means, with respect to any Redemption Date, if clause (2) of the Adjusted Treasury Rate definition is applicable, the average of three, or such lesser number as is obtained by the Issuer, Reference Treasury Dealer Quotations for such Redemption Date.

“Consolidated Net Income” means, for any period, the net income or loss of the Issuer and its consolidated Subsidiaries for such period determined on a consolidated basis in accordance with GAAP after net income or loss attributable to the non-controlling interests and before preferred stock dividends and accretion of issuance costs, plus depreciation and

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amortization of any real property (including furniture and equipment and other real estate assets); provided, however, that there shall be excluded:

(1)    the income of any such consolidated subsidiary to the extent that the declaration or payment of dividends or similar distributions by such consolidated subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such consolidated subsidiary;

(2)    the net income or net loss of any Person, other than the Issuer or a Restricted Subsidiary, except that, subject to the exclusion contained in clause (8) below, the aggregate amount of cash actually distributed by such Person to the Issuer or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to another Restricted Subsidiary, to the limitation contained in clause (1) above) shall be included in determining Consolidated Net Income;

(3)    the income or loss of any person accrued prior to the date it becomes a consolidated subsidiary of the Issuer or is merged into or consolidated with the Issuer or any of its consolidated subsidiaries or the date that such person’s assets are acquired by the Issuer or any of its consolidated subsidiaries;

(4)    any reduction for charges made in accordance with Financial Accounting Standard No. 141, 141R, 142 or 144 or any amendments or successors thereto;

(5)    all extraordinary gains and extraordinary losses and any gains or losses attributable to sales of assets out of the ordinary course of business (for the avoidance of doubt, the sale of real estate and real estate related assets shall always be deemed to be in the ordinary course of business);

(6)    any noncash compensation expense attributable to grants of stock options, restricted stock or similar rights to officers, directors and employees of the Parent, the Issuer or any of its consolidated Subsidiaries;

(7)    any net noncash gain or loss resulting in such period from Hedging Obligations incurred in the ordinary course of business and made in accordance with Financial Accounting Standards Codification Topic No. 815; and

(8)    all gain or loss realized as a result of the cumulative effect of changes in accounting principles;

provided further, however, that Consolidated Net Income for any period shall be increased (i) by cash received during such period by the Issuer or any of its consolidated subsidiaries in respect of commissions receivable (net of related commissions payable to brokers) on transactions that were completed by any acquired business prior to the acquisition of such business and which purchase accounting rules under GAAP would require to be recognized as an intangible asset purchased, (ii) increased, to the extent otherwise deducted in determining Consolidated Net Income for such period, by the amortization of intangibles relating to purchase accounting in connection with any acquisition permitted by the Indenture and (iii) increased (or decreased, as the case may be), in connection with the sale of real estate during such period, to eliminate the effect of purchase price allocations to such real estate resulting from the consummation of any acquisition permitted by the Indenture.

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“Credit Agreement” means the Second Amended and Restated Credit Agreement among the Issuer, as borrower, the Parent and certain Subsidiaries of the Parent, as guarantors, Bank of America, N.A., as the administrative agent, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as letter of credit issuers and the lenders from time to time party thereto, together with the related documents thereto (including the loans thereunder, any guarantees and security documents), as amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any agreement (and related document) governing Indebtedness, including an indenture, incurred to Refinance, in whole or in part, the borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or a successor Credit Agreement.

“Credit Facility” or “Credit Facilities” means one or more debt facilities (including the Credit Agreement), commercial paper facilities, securities purchase agreement, indenture or similar agreement, in each case, with banks or other institutional lenders or investors providing for revolving loans, term loans, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables), letters of credit or the issuance of securities, including any related notes, guarantees, collateral documents, instruments and agreement executed in connection therewith, and, in each case, as amended, restated, replaced (whether upon or after termination or otherwise), refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.

“Currency Agreement” means in respect of a Person any foreign exchange contract, currency swap agreement or other similar agreement designed to protect such Person against fluctuations in currency values.

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

“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder) or upon the happening of any event:

(1)    matures (excluding any maturities as a result of an optional redemption by the issuer thereof) or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;

(2)    is convertible or exchangeable at the option of the holder for Indebtedness or Disqualified Stock; provided, however, that any security redeemable for cash by the holder that can, at the option of the Parent or its Subsidiaries, instead be redeemed or exchanged for Capital Stock of the Parent or its Subsidiaries that is not Disqualified Stock, shall not be Disqualified Stock); or

(3)    is mandatorily redeemable or must be purchased upon the occurrence of certain events or otherwise, in whole or in part (other than for Capital Stock that is not Disqualified Stock),

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in each case on or prior to the first anniversary of the Stated Maturity of the Notes; provided, however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Parent or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Parent or its Subsidiaries in order to satisfy obligations as a result of such employee’s death or disability; provided further, however, that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the occurrence of an “asset sale,” “change of control” or “termination of trading” occurring prior to the first anniversary of the Stated Maturity of the Notes shall not constitute Disqualified Stock if:

(A)    the “asset sale,” “change of control” or “termination of trading” provisions applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than the terms applicable to the Notes and set forth under Sections 4.05 and 4.01; and

(B)    any such requirement only becomes operative after compliance with such terms applicable to the Notes, including the purchase of any Notes tendered pursuant thereto.

For the avoidance of doubt, the following shall not constitute Disqualified Stock:

(x)    the Series A Preferred Stock outstanding on the Issue Date; and

(y)    future issuances of Capital Stock having terms substantially similar to those of the Series A Preferred Stock, provided that, the “change of control” or “termination of trading” provisions applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than the terms applicable to the Series A Preferred Stock outstanding on the Issue Date.

The amount of any Disqualified Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of such Disqualified Stock is to be determined pursuant to the Indenture; provided, however, that if such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment or repurchase price will be the book value of such Disqualified Stock as reflected in the most recent financial statements of such Person.

“DTC” means The Depository Trust Company.

“Effective Tangible Net Worth” means as of any date of determination, stockholders’ equity of the Issuer and its Restricted Subsidiaries (excluding any amounts attributable to Disqualified Stock), less Intangible Assets.

“Equity Offering” means any primary offering of Capital Stock (other than Disqualified Stock) of the Parent or the Issuer to Persons who are not (immediately before such offering) Affiliates of the Parent or the Issuer other than (1) public offerings with respect to the Parent’s Common Stock registered on Form S-8; and (2) issuances upon exercise of options by employees of the Parent or any of its Restricted Subsidiaries.

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

“Excluded Subsidiary” means (i) any Non-Material Subsidiary and (ii) any Restricted Subsidiary that is not a Wholly Owned Subsidiary, provided that all such non-Wholly Owned Subsidiaries in this clause (ii) that are not Subsidiary Guarantors may not, in the aggregate at any time, have assets (attributable to the Issuer’s and its domestic Restricted Subsidiaries’ equity interest in such entities) constituting more than seven and one half percent (7.5%) of the Issuer’s total assets on a consolidated basis based on the Issuer’s most recent internal financial statements.

“Fitch” means Fitch Ratings, Inc.

“Fundamental Change” means the occurrence of a (i) Change of Control or (ii) Termination of Trading; provided, however, that a Termination of Trading will not constitute a Fundamental Change at any time when (x) no Series A Preferred Stock is outstanding; and (y) there is no other outstanding Capital Stock of the Parent that contains a “termination of trading” provision substantially similar to that contained in the Series A Preferred Stock.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time; provided, however, that GAAP shall mean the generally accepted accounting principles in the United States of America as in effect as of April 5, 2011 in the event of a change in GAAP after April 5, 2011 that would have a material adverse (including, without limitation, the treatment of an operating lease as Indebtedness) or positive effect on the Issuer, including those set forth in:

(1)    the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants;

(2)    statements and pronouncements of the Financial Accounting Standards Board;

(3)    such other statements by such other entity as approved by a significant segment of the accounting profession; and

(4)    the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC.

“Global Note” means any Note that is a Global Security.

“Guarantee” means, subject to the first paragraph of Article X, any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect, contingent or otherwise, of such Person:

(1)    to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such Person (whether arising by virtue of partnership or other ownership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or

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(2)    entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);

provided, however, that the term “Guarantee” shall not include (i) endorsements for collection or deposit in the ordinary course of business, (ii) customary environmental indemnities and non-recourse carve-out guarantees (including Permitted Non-Recourse Carve-Out Guarantees) requested by lenders in financing transactions secured by real property or loans secured by real estate, or (iii) completion and budget guarantees. The term “Guarantee” used as a verb has a corresponding meaning.

“Guarantor” means the Parent and/or a Subsidiary Guarantor.

“Guaranty” means the Parent Guaranty and/or a Subsidiary Guaranty.

“Guaranty Agreement” means the Indenture as of the Issue Date or any supplemental indenture, in a form satisfactory to the Trustee, pursuant to which a Guarantor guarantees the Issuer’s obligations with respect to the Notes on the terms provided for in the Indenture.

“Hedging Obligations” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement, commodity price protection or hedging agreement or other similar agreements.

“Holder” or “Noteholder” means the Person in whose name a Note is registered on the Registrar’s books.

“Incur” means issue, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance with Section 4.02, (1) amortization of debt discount or the accretion of principal with respect to a noninterest bearing or other discount security and (2) the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same terms will not be deemed to be the Incurrence of Indebtedness.

“Indebtedness” means, with respect to any Person on any date of determination (without duplication):

(1)    the principal in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become due and payable;

(2)    all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale/Leaseback Transactions entered into by such Person;

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(3)    all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business);

(4)    all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the twentieth (20th) Business Day following payment on the letter of credit);

(5)    the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock of such Person or, with respect to any Preferred Stock of any Subsidiary of such Person, the principal amount of such Preferred Stock to be determined in accordance with the Indenture (but excluding, in each case, any accrued dividends), provided that, provisions relating to waterfall priority returns, carried interest and tax allocations included in partnership agreements, shareholder agreements, limited liability company operating agreements or other constitutive documents entered into in the ordinary course of business shall not constitute Preferred Stock of any Subsidiary of such Person;

(6)    all obligations of the type referred to in clauses (1) through (5) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee;

(7)    all obligations of the type referred to in clauses (1) through (6) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the value of such property or assets and the amount of the obligation so secured; and

(8)    to the extent not otherwise included in this definition, Hedging Obligations of such Person.

Notwithstanding the foregoing, in connection with the purchase by the Issuer or any Restricted Subsidiary of any business or real property, the term “Indebtedness” will exclude post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or post-closing prorations or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within sixty (60) days thereafter. Indebtedness of any Person shall include all Indebtedness of any partnership or other entity in which such Person is a general partner or other equity holder with unlimited liability other than (x) Indebtedness which is non-recourse to such Person and its assets (other than pursuant to Permitted Non-Recourse Carve-Out Guarantees) and (y) if such Person is an Investment Subsidiary, the indebtedness of a related Co-investment Vehicle.

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The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the related contingency at such date; provided, however, that the principal amount of any noninterest bearing or other discount security at any date will be the principal amount thereof that would be shown on a balance sheet of such Person dated such date prepared in accordance with GAAP.

For purposes of calculating the Maximum Balance Sheet Leverage Ratio under Section 4.02(A), the term Indebtedness shall exclude Hedging Obligations of the Issuer and its Restricted Subsidiaries.

“Indenture” has the meaning ascribed to it in the preamble hereto.

“Independent Qualified Party” means an investment banking firm, accounting firm or appraisal firm of national standing; provided, however, that such firm is not an Affiliate of the Issuer.

“Intangible Assets” means, as of any date of determination, intangible assets of the Issuer and its Restricted Subsidiaries under GAAP.

“Interest Rate Agreement” means in respect of a Person any interest rate swap agreement, interest rate cap agreement or other financial agreement or arrangement designed to protect such Person against fluctuations in interest rates.

“Investment” in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the lender) or other extensions of credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by such Person. Except as otherwise provided for herein, the amount of an Investment shall be its fair market value at the time the Investment is made and without giving effect to subsequent changes in value. For the avoidance of doubt, leases to tenants in the ordinary course of business of the Issuer or any Restricted Subsidiary shall not be deemed to constitute “Investments”.

For purposes of the definition of “Unrestricted Subsidiary,” the definition of “Restricted Payment” and Section 4.03:

(1)    “Investment” shall include the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to (A) the Issuer’s “Investment” in such Subsidiary at the time of such redesignation less (B) the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and

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(2)    any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors.

“Investment Subsidiary” shall mean (1) any Subsidiary engaged principally in the business of directly or indirectly buying, holding, transferring or selling real estate related assets, including securities of companies engaged principally in such business (including, without limitation, Real Estate Companies and Qualified REITs) and Indebtedness secured by real estate or equity interests in entities directly or indirectly owning real estate or related assets, or (2) any Subsidiary engaged principally in the business of investment management, including investing in and/or managing Co-investment Vehicles. For the avoidance of doubt, an “Investment Subsidiary” may be a Restricted Subsidiary or an Unrestricted Subsidiary.

“Issue Date” means August 23, 2021.

“Issuer” means the party named as such in the preamble hereto until a successor replaces it pursuant to the applicable provisions of the Indenture and thereafter means the successor. The foregoing sentence shall likewise apply to any such successor or subsequent successor. For purposes of interpreting the Indenture as it relates to the Notes, the term “Company,” as used in the Base Indenture, shall be deemed to refer to the Issuer.

“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof). For the avoidance of doubt, the grant by any Person of a non-exclusive license to use intellectual property owned by, licensed to, or developed by such Person and such license activity shall not constitute a grant by such Person of a Lien on such intellectual property.

“Maximum Balance Sheet Leverage Ratio” means as of any date of determination with respect to the Issuer and its Restricted Subsidiaries, the ratio of total Indebtedness (excluding Non-Recourse Indebtedness) to Effective Tangible Net Worth, in each case as of the previous quarter end; provided, however, that:

(1)    if the Issuer or any Restricted Subsidiary has issued any Indebtedness (including if the proceeds of such Indebtedness have been deposited in an escrow account (as set forth in the definition of “Refinancing Indebtedness”)) since the previous quarter end that remains outstanding or if the transaction giving rise to the need to calculate the Maximum Balance Sheet Leverage Ratio is an issuance of Indebtedness, or both, the Maximum Balance Sheet Leverage Ratio shall be calculated after giving effect on a pro forma basis to such Indebtedness (including a pro forma application of the net proceeds therefrom) as if such Indebtedness had been issued (and the application of any net proceeds therefrom was made) on the last day of the previous quarter, and

(2)    if the Issuer or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise discharged any Indebtedness (including any discharge of Indebtedness to occur upon release of such funds from any escrow account as referenced above) since the previous quarter end or if the transaction giving rise to the need to calculate Maximum Balance Sheet Leverage Ratio will include the repayment, repurchase, defeasance or discharge of Indebtedness, or both,

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the Maximum Balance Sheet Leverage Ratio shall be calculated after giving effect on a pro forma basis to the discharge of such Indebtedness, as if such discharge had occurred on the last day of the previous quarter.

For purposes of this definition, whenever pro forma effect is to be given to an issuance of Indebtedness or the discharge of Indebtedness, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of the Issuer and in a manner that is consistent with Rule 11-02(b)(6) of Regulation S-X promulgated by the SEC.

Solely for purposes of calculating the Maximum Balance Sheet Leverage Ratio under Section 4.02(A), the term Indebtedness shall exclude (i) Guarantees of Indebtedness of a Co-investment Vehicle or separate account or investment program managed, operated, sponsored or owned wholly or in part by an Investment Subsidiary in an amount not to exceed one hundred million dollars ($100,000,000) in the aggregate at any time outstanding; and (ii) Permitted Non-Recourse Carve-Out Guarantees.

“Moody’s” means Moody’s Investors Service, Inc. or any successor rating agency business thereof; provided that if the same ceases to provide rating services to issuers or investors, then the Issuer may select (as certified by a resolution of the Board of Directors) a “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) that will act as “Moody’s” for purposes of the Indenture.

“Net Available Cash” from an Asset Disposition means cash payments received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other noncash form), in each case net of:

(1)    all legal, accounting, investment banking and brokerage fees, title and recording tax expenses, commissions and other fees and expenses incurred, and all federal, state, provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Disposition;

(2)    all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must, by applicable law, be repaid out of the proceeds from such Asset Disposition;

(3)    all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Disposition; and

(4)    the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed in such Asset Disposition and retained by the Issuer or any Restricted Subsidiary after such Asset Disposition.

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“Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof.

“Non-Material Subsidiaries” means all domestic Restricted Subsidiaries designated as Non-Material Subsidiaries by the Issuer; provided that all such domestic Restricted Subsidiaries may not, in the aggregate at any time have assets (attributable to the Issuer’s and its domestic Restricted Subsidiaries’ equity interest in such entities) constituting more than five percent (5.0%) of the Issuer’s total assets on a consolidated basis based on the Issuer’s most recent internal financial statements.

“Non-Recourse Indebtedness” means Indebtedness (including any and all refinancings thereof that would meet the criteria set forth below) of an Investment Subsidiary or Investment Subsidiaries; provided, however, that (1) such Indebtedness is incurred solely in relation to the permitted investment activities (including investments in Permitted Real-Estate Related Asset Investments) or real estate related activities of such Investment Subsidiary or Investment Subsidiaries or any Co-investment Vehicles or separate accounts or investment programs managed, operated or sponsored by an Investment Subsidiary or Investment Subsidiaries, and (2) such Indebtedness is not Guaranteed by, or otherwise recourse to the Issuer or any Restricted Subsidiary (other than pursuant to a Permitted Non-Recourse Carve-Out Guarantee) other than the Investment Subsidiary or Investment Subsidiaries that is or are the borrower(s) or co-borrowers; provided, further, that, if any such Indebtedness is partially Guaranteed by or otherwise recourse to the Issuer or any Restricted Subsidiary (other than pursuant to a Permitted Non-Recourse Carve-Out Guarantee and other than with respect to the Investment Subsidiary or Investment Subsidiaries that is or are the borrower(s)) and therefore does not meet the criteria set forth above, the portion of such Indebtedness that does meet the criteria set forth above shall be “Non-Recourse Indebtedness” hereunder.

“Notes” has the meaning ascribed to it in the preamble hereto.

“Obligations” means with respect to any Indebtedness all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements and other amounts payable pursuant to the documentation governing such Indebtedness.

“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary of the Parent or the Issuer.

“Officer’s Certificate” means a certificate signed on behalf of the Parent or the Issuer, as the case may be, by an Officer of the Parent or the Issuer, respectively.

“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Parent or the Issuer, satisfactory to the Trustee.

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“Parent” means the party named as such in the preamble hereto until a successor replaces it pursuant to the applicable provisions of the Indenture and thereafter means the successor. The foregoing sentence shall likewise apply to any such successor or subsequent successor.

“Parent Guaranty” means the Guarantee by the Parent of the Issuer’s obligations with respect to the Notes contained in the Indenture.

“Permitted Co-investment” means any Investment by the Issuer or any of its Restricted Subsidiaries in, or any Guarantee by the Issuer or any of its Restricted Subsidiaries of the Indebtedness of, a Co-investment Vehicle or separate account or investment program managed, operated or sponsored by one or more Investment Subsidiaries; provided, however, that if, and only if such Investment or Guarantee (other than a Permitted Non-Recourse Carve-Out Guarantee), as applicable, is in an amount greater than one hundred million dollars ($100,000,000), then (i) such Investment shall not be greater than seventy five percent (75%) of the aggregate commitment (including both committed equity and Indebtedness) of such Co-investment Vehicle or separate account or investment program and (ii) such Guarantee (other than a Permitted Non-Recourse Carve-Out Guarantee) shall not be greater than seventy five percent (75%) of the aggregate committed Indebtedness of such Co-investment Vehicle or separate account or investment program; provided further, however, that the total amount of such Guarantees (other than Permitted Non-Recourse Carve-Out Guarantees) shall not exceed one hundred million dollars ($100,000,000) in the aggregate at any time outstanding. For the avoidance of doubt, in determining committed equity and Indebtedness of a Co-investment Vehicle, or separate account or investment program managed, operated or sponsored by one or more Investment Subsidiaries, the committed equity and Indebtedness of such Co-investment Vehicle and its subsidiaries, taken as a whole, or such separate account or investment program, shall be counted.

“Permitted Holders” means (1) William J. McMorrow, (2) any Person both the Capital Stock and Voting Stock of which (or in the case of a trust, the beneficial interests of which) are majority owned by William J. McMorrow or a family member of William J. McMorrow, and (3) any family member of William J. McMorrow, or the estate or heirs of William J. McMorrow or any of his family members.

“Permitted Investment” means an Investment by the Issuer or any Restricted Subsidiary in:

(1)    the Issuer, a Restricted Subsidiary or a Person that will, upon the making of such Investment, become a Restricted Subsidiary; provided, however, that (A) the primary business of such Restricted Subsidiary is a Related Business and (B) such Restricted Subsidiary is not restricted from making dividends or similar distributions by contract, operation of law or otherwise, other than restrictions on dividends or distributions permitted pursuant to Section 4.04;

(2)    another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, the Issuer or a Restricted Subsidiary (including any Investments acquired as a result of such merger, consolidation, transfer or conveyance to the extent that such Investments were not made in contemplation of, and were in existence on the date of, such merger, consolidation, transfer or conveyance); provided, however, that such Person’s primary business is a Related Business;

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(3)    Investments made by the Parent, the Issuer or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Disposition made in compliance with Section 4.05 or from any other disposition or transfer of assets not constituting an Asset Disposition;

(4)    Investments represented by guarantees that are otherwise permitted by the Indenture;

(5)    cash and Temporary Cash Investments;

(6)    receivables owing to the Issuer or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Issuer or any such Restricted Subsidiary deems reasonable under the circumstances;

(7)    payroll, travel, moving and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;

(8)    loans or advances to employees or independent contractors made in the ordinary course of business of the Issuer or such Restricted Subsidiary;

(9)    stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Issuer or any Restricted Subsidiary or in satisfaction of judgments;

(10)    any Person where such Investment was acquired by the Issuer or any of its Restricted Subsidiaries (a) in exchange for any other Investment or accounts receivable held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable or (b) as a result of a foreclosure by the Issuer or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

(11)    Hedging Obligations entered into in the ordinary course of the Issuer’s or any Restricted Subsidiary’s business and not for the purpose of speculation;

(12)    any Person to the extent such Investment exists on the Issue Date or replaces or refinances an Investment in such Person existing on the Issue Date in an amount not exceeding the amount of the Investment being replaced or refinanced; provided, however, that the new Investment is on terms and conditions no less favorable than the Investment being renewed or replaced;

(13)    Investments in insurance on the life of any participant in any deferred compensation plan of the Issuer made in the ordinary course of business;

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(14)    Permitted Co-investments; Permitted Non-Recourse Carve-Out Guarantees; Permitted Real-Estate Related Asset Investments, Capital Stock of any Qualified REIT and Qualified Real Estate Securities;

(15)    so long as no Default shall have occurred and be continuing (or result therefrom), any Person in an aggregate amount which, when added together with the amount of all the Investments made pursuant to this clause (15) which at such time have not been repaid through repayments of loans or advances or other transfers of assets, does not exceed the greater of (x) two hundred million dollars ($200,000,000) and (y) three percent (3.0%) of Total Assets, at any time outstanding (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); and

(16)    marketable securities of a Related Business or marketable securities where the primary purpose of such Investment is to facilitate Related Business, provided that such marketable securities shall not, in the aggregate at any time, have a fair market (measured at the time made and without giving effect to subsequent changes in value) that exceeds the greater of (x) two hundred million dollars ($200,000,000) and (y) three percent (3.0%) of Total Assets.

“Permitted Liens” means, with respect to any Person:

(1)    pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts, including deposits under agreements that provide that such deposit constitutes liquidated damages upon breach of such agreement (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;

(2)    Liens imposed by law, such as carriers’, warehousemen’s, landlord’s, mechanics’, materialmen’s and repairmen’s Liens and other similar Liens, in each case for sums not yet due and payable or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided, however, that (A) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Issuer in excess of those set forth by regulations promulgated by the Federal Reserve Board and (B) such deposit account is not intended by the Issuer or any Restricted Subsidiary to provide collateral to the depository institution;

(3)    Liens for taxes, fees, assessments or other governmental charges not yet subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings;

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(4)    Liens in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided, however, that such letters of credit do not constitute Indebtedness;

(5)    Liens to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations and Attributable Debt), statutory obligations, appeal bonds, performance bonds, mechanic’s lien release bonds and other obligations of a like nature, in each case in the ordinary course of business;

(6)    survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or conditions, covenants and restrictions, deed restrictions, zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(7)    Liens securing Indebtedness (including Capital Lease Obligations and Attributable Debt) Incurred to finance the construction, purchase or lease of, or repairs, improvements or additions to, property (real or personal, tangible or intangible), plant or equipment of such Person or a direct or indirect Subsidiary of such Person or an Investment of such Person; provided, however, that the Lien may not extend to any other property (other than the relevant property, plant or equipment) owned by such Person or any of its Restricted Subsidiaries at the time the Lien is Incurred (other than assets and property affixed or appurtenant thereto), and the Indebtedness (other than any interest thereon) secured by the Lien may not be Incurred more than one hundred and eighty (180) days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien;

(8)    Liens arising out of judgments or awards in respect of which the Issuer or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings; provided that the aggregate amount of all such judgments or awards (and any cash and the fair market value of any property subject to such Liens) does not exceed twenty five million dollars ($25,000,000) at any time outstanding;

(9)    Liens existing on the Issue Date (other than the Liens securing Indebtedness pursuant to any Credit Facility);

(10)    Liens on property (real or personal, tangible or intangible) or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property affixed or appurtenant thereto);

(11)    Liens on property at the time such Person or any of its Subsidiaries acquires such property, including any acquisition by means of a merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property affixed or appurtenant thereto);

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(12)    Liens securing Indebtedness or other obligations of a Subsidiary of such Person owing to such Person or a Subsidiary of such Person;

(13)    Liens securing Hedging Obligations so long as such Hedging Obligations relate to Indebtedness that is, and is permitted to be under the Indenture, secured by a Lien on the same properly securing such Hedging Obligations;

(14)    (A) Liens securing Senior Indebtedness Incurred in compliance with Section 4.02 in an aggregate amount not to exceed the amount of Indebtedness Incurred under Section 4.02(B)(i) and then outstanding, and (B) Liens on Senior Indebtedness securing any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by Liens permitted by this clause (14);

(15)    Liens on specific items of inventory or other goods of such Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person solely to facilitate the purchase, shipment or storage of such inventory or other goods;

(16)    Liens arising solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided, however, that (A) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Issuer or any Subsidiary of the Issuer in excess of those set forth by regulations promulgated by the Board of Governors of the Federal Reserve System of the United States and (B) such deposit account is not intended by the Issuer or any Subsidiary to provide collateral to such depository institution;

(17)    Liens securing Non-Recourse Indebtedness or guarantees (including Permitted Non-Recourse Carve-Out Guarantees) thereof (and Refinancings of any of the foregoing) on assets or Capital Stock of Restricted Subsidiaries formed solely for the purpose of, and which engage in no business other than, any Related Business;

(18)    Liens encumbering the assets of or secured by Permitted Real-Estate Related Asset Investments or Co-investment Vehicles;

(19)    Liens securing Indebtedness which, taken together with all other Indebtedness secured by Liens (excluding Liens permitted by clauses (1) through (18), inclusive, above or clause (20) below) at the time of determination, does not exceed the greater of (x) two hundred million dollars ($200,000,000) and (y) three percent (3.0%) of Total Assets; and

(20)    Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clause (7), (9), (10) or (11); provided, however, that:

(A)    such new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such properly or proceeds or distributions thereof); and

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(B)    the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (x) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clause (7), (9), (10) or (11) at the time the original Lien became a Permitted Lien and (y) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

“Permitted Non-Recourse Carve-Out Guarantees” means customary completion or budget guarantees, indemnities or other customary guarantees provided to lenders (including by means of separate indemnification agreements, carve-out guarantees or pledges of the equity interests in the borrower(s) or the parent of the borrower(s) under Non-Recourse Indebtedness by the direct parent of the borrower(s) (or the indirect parent of the borrower(s), provided that the pledgor’s only assets are direct or indirect equity interests of the borrower(s)) under such Non-Recourse Indebtedness in order to secure such Non-Recourse Indebtedness) provided in the ordinary course of business and consistent with past practice by the Issuer or a Restricted Subsidiary or Restricted Subsidiaries in financing transactions that are directly or indirectly secured by real property or other related assets (including Capital Stock) of a Restricted Subsidiary or Restricted Subsidiaries (including an Investment Subsidiary), Co-Investment Vehicle, joint venture, Unrestricted Subsidiary or a separate account or investment program managed, operated or sponsored by an Investment Subsidiary or Investment Subsidiaries and that may be full or partial recourse or non-recourse to the Restricted Subsidiary or Restricted Subsidiaries (including an Investment Subsidiary), Co-Investment Vehicle, joint venture, Unrestricted Subsidiary or separate account or investment program managed, operated or sponsored by an Investment Subsidiary, in each case that is the borrower or are the borrowers or co-borrowers (or the direct or indirect parent of the borrower(s) or co-borrowers) in such financing, but is non-recourse to Issuer or any other Restricted Subsidiary that is not a borrower or co-borrower, except for such customary completion or budget guarantees, indemnities or other customary guarantees (including by means of separate indemnification agreements or carve-out guarantees) and except for pledges of the equity interests in the borrower(s) or co-borrowers or the parent of the borrower(s) or co-borrowers under Non-Recourse Indebtedness by the direct parent of the borrower(s) or co-borrowers (or the indirect parent of the borrower(s) or co-borrowers provided that the pledgor’s only assets are direct or indirect equity interests of the borrower(s)) or co-borrowers under such Non-Recourse Indebtedness in order to secure such Non-Recourse Indebtedness.

“Permitted Real-Estate Related Asset Investment” means any Investment in secured notes, mortgages, deeds of trust, collateralized mortgage obligations, commercial mortgage-backed securities, other secured debt securities, secured debt derivatives or other secured debt instruments (including any (x) Investment in Indebtedness secured by real estate or equity interests in entities directly or indirectly owning real estate or related assets; and (y) participation interests in any of the aforementioned Investments), so long as such Investment relates directly or indirectly to real property that constitutes or is used as land, office, multifamily, residential, industrial, retail, hotel or mixed-use property or other commercial property types.

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

“Preferred Stock” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) of such Person that is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

“Prospectus Supplement” means that certain prospectus supplement of the Parent relating to the Notes, dated August 9, 2021, filed with the SEC on August 10, 2021, together with the accompanying prospectus.

The “principal” of a Note means the principal of the Note plus the premium, if any, payable on the Note which is due or overdue or is to become due at the relevant time.

“Qualified Real Estate Company” means any (1) Real Estate Company that is controlled, managed, operated or sponsored by the Issuer or any Restricted Subsidiary; (2) Real Estate Company into which the Parent, the Issuer, or its Restricted Subsidiaries contributes or has contributed direct or indirect interests in real estate and related assets in exchange for the Capital Stock of such Real Estate Company; and (3) Real Estate Company in which the Parent, the Issuer or its Restricted Subsidiaries acquires a majority equity interest in the Capital Stock of such Real Estate Company in exchange for Capital Stock of the Issuer or its Restricted Subsidiaries that is not Disqualified Stock.

“Qualified Real Estate Securities” means any securities issued by a Qualified Real Estate Company.

“Qualified REIT” means a domestic or foreign REIT or its operating partnership subsidiary into which the Parent, the Issuer or its Restricted Subsidiaries contribute direct or indirect interests in real estate and related assets in exchange for the Capital Stock of the REIT or its operating partnership subsidiary.

“Quotation Agent” means the Reference Treasury Dealer selected by the Issuer.

“Real Estate Company” means any corporation, limited liability company, limited partnership or other entity, including REITs, whether foreign or domestic, the primary object and purpose of which is the ownership, acquisition, disposition, management, development, promotion, sale, lease of, or investment in, real estate-related assets, including indebtedness secured by real estate-related assets.

“Reference Treasury Dealer” means each of (A) BofA Securities, Inc., J.P. Morgan Securities LLC and Deutsche Bank Securities Inc.; and (B) a primary U.S. Government securities dealer in the United States selected by each of BofA Securities, Inc. and U.S. Bancorp Investments, Inc., and, in each case, the respective successors and assigns of the foregoing.

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“Reference Treasury Dealer Quotations” means with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Issuer by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day immediately preceding date that the applicable redemption notice is first mailed or, if the Notes are held in the form of one or more Global Securities, delivered electronically.

“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for, such indebtedness. “Refinanced” and “Refinancing” shall have correlative meanings.

“Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the Issuer or any Restricted Subsidiary existing on the Issue Date or Incurred in compliance with the Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however, that:

(1)    such Refinancing Indebtedness has a Stated Maturity no earlier than the earlier of (x) the Stated Maturity of the Indebtedness being Refinanced; and (y) the ninety first (91st) day after the maturity date of the Notes;

(2)    such Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being Refinanced;

(3)    such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding or committed (plus fees and expenses, including any premium and defeasance costs) under the Indebtedness being Refinanced; and

(4)    if the Indebtedness being Refinanced is subordinated in right of payment to the Notes, such Refinancing Indebtedness is subordinated in right of payment to the Notes at least to the same extent as the Indebtedness being Refinanced;

provided further, however, that Refinancing Indebtedness shall not include (A) Indebtedness of a Restricted Subsidiary that Refinances Indebtedness of the Issuer or (B) Indebtedness of the Issuer or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary; and provided further, however, that to the extent any new Indebtedness to be applied to Refinance any Indebtedness of the Issuer or its Restricted Subsidiaries:

(A)    is incurred in compliance with clauses (1), (2), (3) and (4) above and with Section 4.02;

(B)    the net proceeds of which are deposited into an escrow account at a bank or trust company which is organized under the laws of the United States of America, any State thereof or any foreign country recognized by the United States of America, and which bank or trust

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company has capital, surplus and undivided profits aggregating in excess of fifty million dollars ($50,000,000) (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) to be held in escrow for a period of not more than ninety (90) days from the date of receipt of such net proceeds; and

(C)    are to be held in such escrow account (together with any additional necessary funds) for the satisfaction and discharge, defeasance or other extinguishment of the Indebtedness to be Refinanced in connection with its Stated Maturity or in connection with an irrevocable notice of redemption,

then such new Indebtedness shall be deemed to be “Refinancing Indebtedness” for the purposes of this definition, notwithstanding that such old Indebtedness remains outstanding pending release of such funds from escrow.

“Related Business” means any business in which the Issuer was engaged on the Issue Date and any business related, ancillary or complementary to any business of the Issuer in which the Issuer was engaged on the Issue Date.

“Replacement Assets” means (1) any property or other assets (other than Indebtedness and Capital Stock) used or useful in a Related Business, (2) substantially all the assets of a Related Business or a majority of the Voting Stock of any Person engaged in a Related Business that will become on the date of acquisition thereof a Restricted Subsidiary, (3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary that is engaged in a Related Business, (4) any Permitted Co-investment, (5) Capital Stock of any Qualified REIT or (6) Capital Stock of any Qualified Real Estate Company.

“Restricted Payment” with respect to any Person means:

(1)    the declaration or payment of any dividends or any other distributions of any sort in respect of its Capital Stock (including any payment in connection with any merger or consolidation involving such Person) or similar payment to the direct or indirect holders of its Capital Stock (other than dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and dividends or distributions payable solely to the Issuer or a Restricted Subsidiary, and other than dividends or other distributions made by a Subsidiary that is not a Wholly Owned Subsidiary in accordance with its organizational documents to minority stockholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation));

(2)    the purchase, redemption or other acquisition or retirement for value of any Capital Stock of the Issuer held by any Person or of any Capital Stock of a Restricted Subsidiary held by any Affiliate of the Issuer (other than a Restricted Subsidiary), including in connection with the exercise of any option to exchange any such Capital Stock (in each case, other than into or for Capital Stock of the Parent or the Issuer that is not Disqualified Stock);

(3)    the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund

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payment of any Subordinated Obligations of such Person, if such Person is the Issuer or a Subsidiary Guarantor (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase or other acquisition); or

(4)    the making of any Investment (other than a Permitted Investment) in any Person.

“Restricted Subsidiary” means any Subsidiary of the Issuer that is not an Unrestricted Subsidiary.

“Rule 3-10-Eligible Subsidiary” means, as of any time, a subsidiary of the Rule 3-10 Reporting Entity as of such time, which subsidiary satisfies the ownership requirements set forth in Rule 3-10 of Regulation S-X under Exchange Act (as such rule is in effect as of such time) necessary to permit such subsidiary to omit filing, with the SEC, its financial statements in reliance upon such Rule 3-10 (as in effect as of such time).

“Rule 3-10 Reporting Entity” means, as of any time, the Parent or any subsidiary thereof that, as of such time, has, on file with the SEC, the financial and other disclosures necessary, pursuant to Rule 3-10 of Regulation S-X under Exchange Act (as such rule is in effect as of such time), to permit the Subsidiary Guarantors to omit filing, with the SEC, their respective financial statements in reliance upon such Rule 3-10 (as in effect as of such time). The Parent is the Rule 3-10 Reporting Entity as of the Issue Date.

“S&P” means Standard & Poor’s Ratings Group. or any successor rating agency business thereof; provided that if the same ceases to provide rating services to issuers or investors, then the Issuer may select (as certified by a resolution of the Board of Directors) a “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) that will act as “S&P” for purposes of the Indenture.

“Sale/Leaseback Transaction” means an arrangement relating to property owned by the Issuer or a Restricted Subsidiary on the Issue Date or thereafter acquired by the Issuer or a Restricted Subsidiary whereby the Issuer or a Restricted Subsidiary transfers such property to a Person and the Issuer of a Restricted Subsidiary leases it from such Person.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended.

“Senior Indebtedness” means with respect to any Person:

(1)    Indebtedness of such Person, whether outstanding on the Issue Date or thereafter Incurred; and

(2)    accrued and unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person whether or not post-filing interest is allowed in such proceeding) in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable,

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unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are subordinate in right of payment to the Notes or the Guaranty of such Person, as the case may be; provided, however, that Senior Indebtedness shall not include:

(1)    any obligation of such Person to any Subsidiary;

(2)    any liability for federal, state, local or other taxes owed or owing by such Person;

(3)    any accounts payable or other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities);

(4)    any Indebtedness of such Person (and any accrued and unpaid interest in respect thereof) which is subordinate or junior in any respect to any other Indebtedness or other obligation of such Person;

(5)    any Capital Stock; or

(6)    that portion of any Indebtedness which at the time of Incurrence is Incurred in violation of the Indenture; provided, however, that such Indebtedness shall be deemed not to have been Incurred in violation of the Indenture for purposes of this clause (6) if (x) the holders of such Indebtedness or their representative or the Issuer shall have furnished to the Trustee an opinion of recognized independent legal counsel, unqualified in all material respects, addressed to the Trustee (which legal counsel may, as to matters of fact, rely upon an Officer’s Certificate) to the effect that the Incurrence of such Indebtedness does not violate the provisions of the Indenture or (y) such Indebtedness consists of Bank Indebtedness, and the holders of such Indebtedness or their agent or representative (1) had no actual knowledge at the time of the Incurrence that the Incurrence of such Indebtedness violated the Indenture and (2) shall have received an Officer’s Certificate to the effect that the Incurrence of such Indebtedness does not violate the provisions of the Indenture.

For the avoidance of doubt, the Trustee shall be under no obligation or duty to determine whether the opinion referred to in clause (6) above is “unqualified in all material respects.”

“Series A Preferred Stock” means the Parent’s 5.75% Series A Cumulative Perpetual Convertible Preferred Stock.

“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Issuer within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.

“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the

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happening of any contingency unless such contingency has occurred); provided, however, that, for purposes of interpreting the Indenture as it relates to the Notes, the term “Stated Maturity,” as used in the Base Indenture, shall have the meaning ascribed to it in the Base Indenture (and, for the avoidance of doubt, the term “Stated Maturity,” as used herein, shall have the meaning ascribed to it herein).

“Subordinated Obligation” means, with respect to a Person, any Indebtedness of such Person (whether outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior in right of payment to the Notes or a Guaranty of such Person, as the case may be, pursuant to a written agreement to that effect.

“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than fifty percent (50%) of the total voting power of shares of Voting Stock is at the time owned or controlled, directly or indirectly, by:

(1)    such Person;

(2)    such Person and one or more Subsidiaries of such Person; or

(3)    one or more Subsidiaries of such Person,

and the accounts of which would be consolidated with those of such Person in its consolidated financial statements in accordance with GAAP, if such statements were prepared as of such date.

“Subsidiary Guarantor” means each Subsidiary of the Issuer that has executed this Supplemental Indenture as a Subsidiary Guarantor and each other Subsidiary of the Issuer that thereafter guarantees the Notes pursuant to the terms of the Indenture. The following Subsidiaries of the Issuer have executed this Supplemental Indenture as Subsidiary Guarantors on the Issue Date: K-W Properties, a California corporation; KW BASGF II Manager, LLC, a Delaware limited liability company; KWF Investors I, LLC, a Delaware limited liability company; Kennedy Wilson Overseas Investments, Inc., a Delaware corporation; SG KW Venture I Manager LLC, a Delaware limited liability company; KW Summer House Manager, LLC, a Delaware limited liability company; KW Montclair, LLC, a Delaware limited liability company; KW Serenade Manager, LLC, a Delaware limited liability company; K-W Santiago Inc., a California corporation; KW Redmond Manager, LLC, a Delaware limited liability company; Dillingham Ranch Aina LLC, a Delaware limited liability company; 68-540 Farrington, LLC, a Delaware limited liability company; KW Dillingham Aina LLC, a Delaware limited liability company; Kennedy Wilson Fund Management Group, LLC, a California limited liability company; Kennedy-Wilson International, a California corporation; Kennedy-Wilson Tech Ltd., a California corporation; KWP Financial I, a California corporation; Kennedy Wilson Auction Group Inc., a California corporation; KWF Manager IV, LLC, a Delaware limited liability company; KW Ireland, LLC, a Delaware limited liability company; Kennedy Wilson Real Estate Sales & Marketing, a California corporation; KWF Investors IV, LLC, a Delaware limited liability company; Santa Maria Land Partners Manager, LLC, a Delaware limited liability company; KW Investment Adviser, LLC, a Delaware limited liability company; Kennedy-Wilson Capital, a California corporation; KWF Investors VII, LLC, a Delaware limited liability company; KWF Manager VII, LLC, a Delaware limited liability company; KW Residential

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Capital, LLC, a Delaware limited liability company; KW Boise Plaza, LLC, a Delaware limited liability company; KW EU Loan Partners II, LLC, a Delaware limited liability company; KW Harrington LLC, a Delaware limited liability company; KW 5200 Lankershim Manager, LLC, a Delaware limited liability company; KWF Manager X, LLC, a Delaware limited liability company; KWF Manager XI, LLC, a Delaware limited liability company; KWF Manager XII, LLC, a Delaware limited liability company; KW Real Estate Venture XIII, LLC, a Delaware limited liability company; KWF Manager XIII, LLC, a Delaware limited liability company; KW EU Loan Partners III, LLC, a Delaware limited liability company; KW EU Investors I, LLC, a Delaware limited liability company; KW Richfield Plaza, LLC, a Delaware limited liability company; KW Currier Square Shopping Center, LLC, a Delaware limited liability company; KW Creekview Shopping Center, LLC, a Delaware limited liability company; KW Securities, LLC, a Delaware limited liability company; KW Victory Land Loan, LLC, a Delaware limited liability company; KW Victory Plaza Loan, LLC, a Delaware limited liability company; Country Ridge IX, LLC, a Delaware limited liability company; KW EU Investors VIII, LLC, a Delaware limited liability company; KW Park Santa Fe, LLC, a Delaware limited liability company; KW Cypress, LLC, a Delaware limited liability company; KW Tacoma Condos, LLC, a Delaware limited liability company; KW Desert Ramrod Sponsor, LLC, a Delaware limited liability company; KW 9350 Civic Center Drive, LLC, a Delaware limited liability company; KW Taylor Yard 55, LLC, a Delaware limited liability company; KW Red Cliff Shopping Center, LLC, a Delaware limited liability company; KW Holiday Village Shopping Center, LLC, a Delaware limited liability company; KW Hilltop Manager II, LLC, a Delaware limited liability company; KW Bozeman Investors, LLC, a Delaware limited liability company; KW One Baxter Way GP, LLC, a Delaware limited liability company; KW Riverdale and 36, LLC, a Delaware limited liability company; KW 400 California Member, LLC, a Delaware limited liability company; KW CIG Management Services, LLC, a Delaware limited liability company; KW Terra West Sponsor, LLC, a Delaware limited liability company; KW Hanover Quay, LLC, a Delaware limited liability company; Kennedy Wilson Property Equity VI, LLC, a Delaware limited liability company; Kennedy Wilson Property Services VI, LLC, a Delaware limited liability company; KW LV 3 Sponsor, LLC, a Delaware limited liability company; KW NB LLC, a Delaware limited liability company; KW Camarillo Land, LLC, a Delaware limited liability company; KW 2013EE LLC, a Delaware limited liability company; KW EU PRS Investor, LLC, a Delaware limited liability company; KW Rosewood Premiere, LLC, a Delaware limited liability company; KW River Pointe Premier, LLC, a Delaware limited liability company; KW Kawana Springs, a Delaware limited liability company; KW Quebec Participant, LLC, a Delaware limited liability company; KW Quebec Asset Manager, LLC, a Delaware limited liability company; KW Real Estate II Equity, LLC, a Delaware limited liability company; KW Real Estate II Carry, LLC, a Delaware limited liability company; KW Real Estate II GP, LLC, a Delaware limited liability company; KW Sunset CP Participant, LLC, a Delaware limited liability company; KW Sunset CP Asset Manager, LLC, a Delaware limited liability company; KW CP West Hills Participant, LLC, a Delaware limited liability company; KW CP West Hills Asset Manager, LLC, a Delaware limited liability company; KW Linder Road, LLC, a Delaware limited liability company; KW Seattle Office Portfolio GP, LLC, a Delaware limited liability company; KW CDO Investor, LLC, a Delaware limited liability company; KW Hamilton Landing—Land, LLC, a Delaware limited liability company; KW Rancho Mirage Loan, LLC, a Delaware limited liability company; KW Sunset North LLC, a Delaware limited liability company; KW Heights Investor, LLC, a Delaware limited liability company; KW Burlingame Point Loan, LLC, a

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Delaware limited liability company; KW Pacifica, LLC, a Delaware limited liability company; KW Riverwalk, LLC, a Delaware limited liability company; KW ABQ, LLC, a Delaware limited liability company; KW F5 Tower, LLC (formerly KW 2016F LLC), a Delaware limited liability company; KW Manhattan Beach Studio Loan, LLC (formerly KW 2016G LLC), a Delaware limited liability company; KW Golden State Tower Loan, LLC (formerly KW 2016H LLC), a Delaware limited liability company; KW RockVue, LLC (formerly KW 2016I LLC), a Delaware limited liability company; KW South Main Station, LLC (formerly KW 2016J LLC), a Delaware limited liability company; KWF Manager, LLC (formerly KW 2016K LLC), a Delaware limited liability company; KW Residences at Harvard, LLC (formerly KW 2016L LLC), a Delaware limited liability company; KW Moffett Place, LLC (formerly KW 2016M LLC), a Delaware limited liability company; KW The Press, LLC (formerly KW 2016N LLC), a Delaware limited liability company; KW Orchard-Trimble Campus, LLC (formerly KW 2016Q LLC), a Delaware limited liability company; KW 50 West, LLC (formerly KW 2016R LLC), a Delaware limited liability company; KW Kohanaiki, LLC (formerly KW 2016T LLC), a Delaware limited liability company; KW EU Capital 2, LLC (formerly KW 2016U LLC), a Delaware limited liability company; KW EU Capital 3, LLC (formerly KW 2016V LLC), a Delaware limited liability company; KW 134th Street Lofts, LLC (formerly KW 2016W LLC), a Delaware limited liability company; KW Ashton Parc Villagio, LLC (formerly KW 2016X LLC), a Delaware limited liability company; KW SB Manager, LLC (formerly Diamond 2 US, LLC), a Delaware limited liability company; KW THE CADANCE, LLC (formerly KW EU Investors III, LLC), a Delaware limited liability company; KW WATERLINE APARTMENTS, LLC (formerly KW EU Investors II, LLC), a Delaware limited liability company; KW 360 Spear, LLC (formerly KW 2016Y LLC), a Delaware limited liability company; KW Advanta Office Commons, LLC (formerly KW 2016Z LLC), a Delaware limited liability company; KW South Bay Galleria, LLC (formerly KW 2019A, LLC), a Delaware limited liability company; KW Pine 43, LLC (formerly KW 2019C, LLC), a Delaware limited liability company; KW Eisley Sponsor, LLC (formerly KW 2019D, LLC), a Delaware limited liability company; KW LPC Investor, LLC (formerly KW Pan, LLC, formerly KW 2016O LLC), a Delaware limited liability company; KW OXFORD NORTH LLC (formerly KW 9th Street Market, LLC, formerly KW 2016S LLC), a Delaware limited liability company; and KW ALILA NAPA VALLEY, LLC (formerly KW 2019F, LLC), a Delaware limited liability company.

“Subsidiary Guaranty” means a Guarantee by a Subsidiary Guarantor of the Issuer’s obligations with respect to the Notes.

“Temporary Cash Investments” means any of the following:

(1)    any investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof;

(2)    investments in time deposit accounts, bankers’ acceptances, certificates of deposit and money market deposits maturing within one year of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any State thereof or any foreign country recognized by the United States of America, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of fifty million dollars ($50,000,000) (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Section 3(a)(62) of the Exchange Act) or any money-market fund sponsored by a registered broker-dealer or mutual fund distributor;

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(3)    repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (1) above and clauses (4) and (5) below entered into with a bank meeting the qualifications described in clause (2) above;

(4)    investments in commercial paper, maturing not more than one year from the date of creation thereof, issued by a corporation (other than an Affiliate of the Issuer) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according to S&P; and

(5)    investments in securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s.

“Termination of Trading” means the termination (but not the temporary suspension) of trading of the Common Stock of Parent, which will be deemed to have occurred if the Common Stock or other securities into which the Parent’s Series A Preferred Stock are then convertible are not, or are not permitted to be, listed for trading on the New York Stock Exchange or any other U.S. national securities exchange.

“Total Assets” means, as of any date of determination, the total consolidated assets of the Issuer and its Restricted Subsidiaries under GAAP, as of the end of the most recent completed fiscal quarter for which internal financial statements are available, calculated on a pro forma basis to give effect to any acquisition or disposition of assets, companies, divisions, lines of businesses or operations by the Issuer and its Restricted Subsidiaries subsequent to the end of such fiscal quarter and on or prior to the date of determination.

“Trustee” means the party named as such in the preamble hereto until a successor replaces it pursuant to the applicable provisions of the Indenture and thereafter means the successor. The foregoing sentence shall likewise apply to any such successor or subsequent successor.

“U.S. Bankruptcy Code” means Title 11, U.S. Code or any similar Federal or State law for the relief of debtors.

“Unrestricted Subsidiary” means:

(1)    any Subsidiary of the Issuer that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors or the Audit Committee or the Parent’s management (which designation, if not by the Board of Directors or the Audit Committee of the Board of Directors, will be evidenced in an Officer’s Certificate that is delivered to the Trustee) in the manner provided in Section 4.11; and

(2)    any Subsidiary of an Unrestricted Subsidiary.

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“U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by converting such foreign currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two Business Days prior to such determination.

Except as provided in Section 4.02, whenever it is necessary to determine whether the Issuer has complied with any covenant in the Indenture or a Default has occurred and an amount is expressed in a currency other than U.S. dollars, such amount will be treated as the U.S. Dollar Equivalent determined as of the date such amount is initially determined in such currency.

“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer’s option.

“Voting Stock” of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof. For the avoidance of doubt, if the capital structure of such Person includes both (x) capital or similar interests; and (y) profit, “promote” or similar interests, then Voting Stock shall be deemed to refer only to such capital or similar interests and not to such profit, “promote” or similar interests.

“Wholly Owned Subsidiary” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying shares) is owned by the Issuer or one or more Wholly Owned Subsidiaries.

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1.02    OTHER DEFINITIONS.

Term	Defined in Section
“Accountant’s Certificate”	8.01(A)(ii)(b)
“Additional Notes”	2.10
“Affiliate Transaction”	4.06(A)
“bankruptcy default”	6.01(viii)
“Event of Default”	6.01
“Excess Proceeds”	4.05(B)
“Fundamental Change Offer”	4.01(B)
“Initial Lien”	4.07
“Interest Payment Date”	2.06
“Redemption Date”	3.01(D)
“Regular Record Date”	2.06
“Successor Company”	5.01(A)

1.03    INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.

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

“Commission” means the SEC.

“indenture securities” means the Notes.

“indenture security holder” means a Holder.

“indenture to be qualified” means the Indenture.

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

“obligor” on the indenture securities means the Issuer, each Guarantor and any successor obligor upon the Notes.

All other terms used in this Supplemental 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.

1.04    RULES OF CONSTRUCTION.

Unless the context otherwise requires:

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

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

(iii)    “or” is not exclusive;

(iv)    “including” means “including without limitation”;

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

(vi)    provisions apply to successive events and transactions;

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

(viii)    references to currency shall mean Dollars; and

(ix)    references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time (or to successor statutes and regulations).

Except as stated otherwise herein, the provisions hereof shall apply in addition to the provisions set forth in the Base Indenture; provided, however, that to the extent any provision hereof conflicts or is inconsistent with any provision of the Base Indenture, the provisions hereof shall control to the extent of such conflict or inconsistency.

II.    THE SECURITIES

2.01    EXECUTION AND AUTHENTICATION OF NOTES.

The Trustee shall authenticate Notes for original issue in the aggregate principal amount of six hundred million dollars ($600,000,000). The Notes issued pursuant to this Section 2.01 shall be issued at a price equal to 100% of their principal amount, except that Additional Notes issued pursuant to this Section 2.01 may be issued at different prices.

Additional Notes may be executed, issued and authenticated pursuant to this Section 2.01 upon satisfaction of the requirements therefor provided in Section 2.10.

2.02    REGISTRAR, PAYING AGENT AND AUTHENTICATING AGENT.

The Issuer hereby appoints the Trustee as the initial Registrar and Paying Agent for the Notes.

For purposes of the Notes, the final sentence of the first paragraph of Section 2.4 of the Base Indenture shall be deemed to be amended to read as follows: “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, then such (x) such presentations and

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surrenders 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 and surrenders, and (y) such notices and demands may be delivered to the corporate headquarters of the Issuer.”

Notwithstanding anything to the contrary in the Base Indenture, for purposes of the Notes, (x) an authenticating agent appointed in the manner provided in the Base Indenture may authenticate the Notes in lieu of the Trustee; and (y) any authentication may be made by manual signature.

2.03    PAYMENT; CURRENCY.

Payments in respect of each Note represented by Global Note shall be made by wire transfer of immediately available funds to the accounts specified by the Depositary of such Note. Payments in respect of each Note not represented by a Global Note shall be made by wire transfer of immediately available funds to the account theretofore specified by the Holder of such Note or, if no such account is so specified, by mailing a check to such Holder’s registered address.

All cash payments due with respect to the Notes shall be made in Dollars.

An installment of principal or interest will be considered paid on the date due if the Trustee (or Paying Agent, other than the Issuer or any Affiliate of the Issuer) holds on that date money designated for and sufficient to pay such installment. If the Issuer or any Affiliate of the Issuer acts as Paying Agent, an installment of principal or interest will be considered paid on the due date only if paid to the Holders.

The Issuer agrees to pay interest on overdue principal, and overdue installments of interest at the rate per annum specified in the Notes.

2.04    SECURITY.

The Notes shall be unsecured.

2.05    FORM AND DATING; DEPOSITARY.

The Notes and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication.

The Notes issued pursuant to Section 2.01 shall be issued initially in the form of one or more Global Notes, substantially in the form set forth in Exhibit A hereto, deposited with the Trustee, as custodian for DTC (who shall be the initial Depository for the Notes), duly executed by the Issuer and authenticated by the Trustee and bearing the legend set forth in Exhibit B hereto in lieu of any legend required pursuant to Section 2.14.3 of the Base Indenture.

The Notes shall be denominated in Dollars. The Notes shall be issuable only in registered form without interest coupons and only in minimum denominations of $2,000 in principal amount and in principal amount denominations of any integral multiple of $1,000 in excess thereof.

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2.06    INTEREST PAYMENT AND RECORD DATES.

Interest on the Notes shall accrue at the rate of 4.75% per annum and will be payable semi-annually in arrears on March 1 and September 1 of each year, commencing (in the case of Notes issued pursuant to Section 2.01) on March 1, 2022 (each, an “Interest Payment Date”); provided, however, that February 1, 2030 will also be an Interest Payment Date. Such interest shall be payable to Holders of the Notes at the close of business on the February 15 and August 15 (each, a “Regular Record Date”), as applicable, immediately preceding the date the installment of such interest is due; provided, however, that the Regular Record Date for the Interest Payment Date occurring on February 1, 2030 will be January 15, 2030. Interest shall accrue on the Notes from the date of original issuance or, if interest has already been paid, from the date such interest was most recently paid. Interest shall be computed on the basis of a three hundred and sixty (360) day year comprised of twelve (12) thirty (30) day months.

2.07    MATURITY DATE.

The Stated Maturity of the principal amount of the Notes shall be February 1, 2030, subject to earlier redemption or repurchase as provided in the Indenture.

2.08    RANKING.

The indebtedness of the Issuer arising under or in connection with the Notes and, with respect to the Notes, the Indenture, constitutes and will constitute a senior unsecured obligation of the Issuer, ranking equally with other existing and future senior unsecured indebtedness of the Issuer and ranking senior to any existing or future subordinated indebtedness of the Issuer.

2.09    EXCHANGE FOR SECURITIES OTHER THAN GLOBAL SECURITIES.

Notwithstanding anything to the contrary in Section 2.14 of the Base Indenture, a Global Note representing any Note shall not be exchangeable for any Note not represented by a Global Note unless:

(A)    the Depositary (a) notifies the Issuer that it is unwilling or unable to continue as depositary for the Global Notes and the Depositary fails to appoint a successor depositary; or (b) has ceased to be a clearing agency registered under the Exchange Act;

(B)    the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of Notes in certificated form; or

(C)    there has occurred and is continuing a Default with respect to the Notes and the Trustee has received a request from the Depositary to issue Notes in certificated form.

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2.10    ADDITIONAL NOTES.

The Issuer may, without the consent of the Holders (but, for the avoidance of doubt, subject to (i) Section 4.02 and (ii) receipt by the Trustee of an Officer’s Certificate and Opinion of Counsel as contemplated by Section 10.4 of the Base Indenture), issue additional Notes (the “Additional Notes”) from time to time under the Indenture with the same terms and conditions (except for any difference in the issue price therefor and interest accrued prior to the date of issuance thereof) as the Notes initially issued hereunder in an unlimited aggregate principal amount, which will form the same Series with the Notes initially issued hereunder; provided, however, that if such Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, then such Additional Notes will have a separate CUSIP number. The Notes issued pursuant to Section 2.01 and all Additional Notes, if any, shall rank equally and ratably and shall be treated as a single Series of Securities for all purposes under the Indenture (including, without limitation, waivers of, amendments to, redemptions of, and offers to purchase, the Notes). For the avoidance of doubt, Holders of the Notes offered hereby and any Additional Notes subsequently issued under the Indenture shall vote as one class under the Indenture. Unless the context otherwise requires, for all purposes of the Indenture, references to the Notes shall include any Additional Notes actually issued.

2.11    AMENDMENTS TO THE BASE INDENTURE.

Notwithstanding anything to the contrary in the Base Indenture, for purposes of the Notes:

(A)    Section 2.13 of the Base Indenture shall be amended to read as follows: “Interest not paid when due and any interest on principal or interest not paid when due will be paid to the Persons that are Holders of record on a special record date, which will be the fifteenth (15th) day preceding the date fixed by the Issuer for the payment of such interest, whether or not such day is a Business Day. At least fifteen (15) days before a special record date, the Issuer will deliver to the Trustee and mail to each Holder of Notes a notice that states the special record date, the payment date and the amount of interest to be paid.”; and

(B)    the phrase “to the effect” in Section 2.14.2 of the Base Indenture shall be deemed to be replaced with the word “stating.”

III.    REDEMPTION

Article III of the Base Indenture shall apply to the Notes. Except as provided in this Article III and in Article III of the Base Indenture, the Issuer is not entitled to redeem the Notes at the Issuer’s option. The Issuer is not required to make any sinking fund payments with respect to the Notes, and Article XI of the Base Indenture shall not apply to the Notes. For the avoidance of doubt, nothing in the Indenture shall be deemed to prohibit the Issuer or the Guarantors from purchasing Notes, from time to time, in open market or negotiated purchases.

3.01    OPTIONAL REDEMPTION.

(A)    On and after September 1, 2024 (or, if such date is not a Business Day, the next Business Day), the Issuer may, at the Issuer’s option, redeem all or a portion of the Notes at the

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redemption prices (expressed in percentages of principal amount on the redemption date), plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of Holders of record on the Regular Record Date to receive interest due on the related Interest Payment Date), if redeemed during the twelve (12) month period commencing on September 1 of the years set forth below:

Period	Redemption Price
2024		102.375	%
2025		101.188	%
2026 and thereafter		100.000	%

(B)    At any time before September 1, 2024, the Issuer may, at its option on one or more occasions, redeem Notes (which includes Additional Notes, if any) in an aggregate principal amount not to exceed forty percent (40%) of the aggregate principal amount of the Notes (which includes Additional Notes, if any) originally issued at a redemption price (expressed as a percentage of principal amount) of 104.75%, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of Holders of record on the Regular Record Date to receive interest due on the related Interest Payment Date), with an amount not to exceed the net cash proceeds from one or more Equity Offerings (provided that if the Equity Offering is an offering by the Parent, a portion of the Net Cash Proceeds thereof equal to the amount required to redeem any such Notes is contributed to the equity capital of the Issuer), provided that:

(i)    at least sixty percent (60%) of such aggregate principal amount of Notes (which includes Additional Notes, if any) remains outstanding immediately after the occurrence of each such redemption (other than Notes held, directly or indirectly, by the Issuer or its Affiliates); and

(ii)    each such redemption occurs within ninety (90) days after the date of the related Equity Offering.

Notice of any redemption upon any Equity Offering may be given prior to the completion thereof, and any such redemption or notice, may, at the Issuer’s discretion, be subject to the completion of the related Equity Offering.

(C)    Prior to September 1, 2024, the Issuer may, at the Issuer’s option, redeem all or a portion of the Notes at a redemption price equal to one hundred percent (100%) of the principal amount of the Notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, the Redemption Date (subject to the right of Holders on the Regular Record Date to receive interest due on the relevant Interest Payment Date).

(D)    Notes called for redemption become due on the date fixed for redemption (the “Redemption Date”). On and after the Redemption Date of a Note, interest shall cease to accrue thereon.

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3.02    NOTICE OF REDEMPTION.

For purposes of the Notes, the first (1st) sentence of Section 3.3 of the Base Indenture is deemed to be amended to read as follows: “Notice of redemption must be delivered electronically if the Notes are held in the form of one or more Global Securities or mailed by first-class mail to each Holder’s registered address, in each case not less than 30 nor more than 60 days prior to the Redemption Date.”

3.03    CONDITIONAL REDEMPTIONS.

Notwithstanding anything to the contrary in Section 3.02 of this Supplemental Indenture or in Section 3.3 or 3.4 of the Base Indenture: (A) notice of any redemption of Notes upon any corporate transaction or other event (including any Equity Offering, incurrence of indebtedness, Change of Control or other transaction) may be given prior to the completion of such transaction or event; (B) any redemption of Notes or notice thereof may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a corporate transaction or other event; (C) if any redemption of Notes is so subject to the satisfaction of one or more conditions precedent, the notice thereof shall describe each such condition and, if applicable, shall state that, in the Issuer’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), and/or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer in its sole discretion) by the Redemption Date, or by the Redemption Date as so delayed, and/or that such notice may be rescinded at any time by the Issuer if the Issuer determines in its sole discretion that any or all of such conditions will not be satisfied (or waived); and (D) the Issuer may provide in such notice that payment of the redemption price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.

3.04    SECURITIES REDEEMED IN PART.

Notwithstanding anything to the contrary in Section 3.2 of the Base Indenture, if the Issuer redeems less than all the Notes at any time, then the Trustee shall select Notes to be so redeemed on a pro rata basis, by lot or by such other method in accordance with the procedures of the Depositary. If any Note is to be redeemed in part only, then the notice of redemption for such Note, as specified in Section 3.3 of the Base Indenture, shall state the portion of the principal amount thereof to be redeemed. Any Note to be redeemed and that has a principal amount of $2,000 or less shall be so redeemed in whole and not in part.

IV.    COVENANTS

4.01    FUNDAMENTAL CHANGE OFFER.

(A)    Upon the occurrence of a Fundamental Change, each Noteholder shall have the right to require that the Issuer purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the Regular Record Date to receive interest due on the relevant Interest Payment Date).

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(B)    Within thirty (30) days following any Fundamental Change, unless the Issuer has exercised its option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture, the Issuer shall mail (or, if the Notes are held in the form of one or more Global Securities, deliver electronically) a notice to each Noteholder with a copy to the Trustee (the “Fundamental Change Offer”) stating:

(i)    that a Fundamental Change has occurred and that such Noteholder has the right to require the Issuer to purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Noteholders of record on the Regular Record Date to receive interest on the relevant Interest Payment Date);

(ii)    the circumstances and relevant facts regarding such Fundamental Change, at a minimum to include:

(a)    a description of material developments in the Issuer’s business subsequent to the date of the latest of the financial statements (including a description of the events requiring the Issuer to make the Fundamental Change Offer), and

(b)    if applicable, appropriate pro forma financial information (including pro forma historical income, cash flow and capitalization, in each case after giving effect to such Fundamental Change) and the events requiring the Issuer to make the Fundamental Change Offer;

(iii)    the purchase date (which shall be no earlier than thirty (30) days nor later than sixty (60) days from the date such notice is mailed or electronically delivered);

(iv)    the instructions, as determined by the Issuer, consistent with this Section 4.01, that a Noteholder must follow in order to have its Notes purchased;

(v)    that a Holder may tender all or any portion of its Notes, subject to the requirement that any portion of a Note tendered must be in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof;

(vi)    the place or places where Notes are to be surrendered for tender pursuant to the Fundamental Change Offer;

(vii)    each Holder electing to tender a Note pursuant to the Fundamental Change Offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Issuer or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer);

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(viii)    interest on any Note not tendered, or tendered but not purchased by the Issuer pursuant to the Fundamental Change Offer, will continue to accrue;

(ix)    on the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date;

(x)    Holders are entitled to withdraw tendered Notes (in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof) by giving notice, which must be received by the Issuer or the Trustee not later than the close of business on the applicable expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender;

(xi)    if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and

(xii)    if any Note contains a CUSIP or ISIN number, no representation is being made as to the correctness of the CUSIP or ISIN number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes.

Prior to the purchase date, the Issuer will accept tendered Notes for purchase as required by the Fundamental Change Offer and deliver to the Trustee all Notes so accepted together with an Officer’s Certificate specifying which Notes have been accepted for purchase. On the purchase date, the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part.

The Issuer will not be required to make a Fundamental Change Offer following a Fundamental Change if (x) a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Fundamental Change Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer; or (y) the Issuer has exercised the Issuer’s option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture.

The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes as a result of a Fundamental Change. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.01, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached the Issuer’s obligations under this Section 4.01 by virtue of the Issuer’s compliance with such securities laws or regulations.

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Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, a Fundamental Change Offer may be made in advance of a Change of Control, or conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of such Fundamental Change Offer.

(C)    Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, the provisions under the Indenture relative to the Issuer’s obligation to make an offer to purchase the Notes as a result of a Fundamental Change may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.

4.02    LIMITATION ON INDEBTEDNESS.

(A)    The Issuer will not, and will not permit any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Issuer and the Restricted Subsidiaries will be entitled to Incur Indebtedness (including revolving credit Indebtedness) if, on the date of such Incurrence and after giving effect thereto (and the use of proceeds, if any, therefrom, in accordance with the definition of Maximum Balance Sheet Leverage Ratio), no Default has occurred and is continuing and the Maximum Balance Sheet Leverage Ratio is no greater than 1.5 to 1.0.

(B)    Notwithstanding the foregoing Section 4.02(A), the Issuer and the Restricted Subsidiaries will be entitled to Incur any or all of the following Indebtedness:

(i)    Indebtedness Incurred by the Issuer pursuant to any Credit Facility (including the Credit Agreement); provided, however, that, immediately after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this Section 4.02(B)(i) and then outstanding does not exceed the greater of (x) seven hundred million dollars ($700,000,000) and (y) ten percent (10.0%) of Total Assets;

(ii)    Indebtedness owed to and held by the Issuer or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Issuer or a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the obligor thereon and (B) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;

(iii)    the Notes (other than any Additional Notes);

(iv)    Indebtedness of the Issuer and its Subsidiaries outstanding on the Issue Date (other than Indebtedness described in clause (i), (ii) or (iii) of this Section 4.02(B));

(v)    Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Issuer (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds

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or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Issuer); provided, however, at the time of such acquisition and after giving effect thereto, the aggregate principal amount of all Indebtedness Incurred pursuant to this clause (v) and then outstanding does not exceed twenty five million dollars ($25,000,000);

(vi)    Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.02(A) or pursuant to clause (iii), (iv), (v) or (xv) or this clause (vi); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (v), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;

(vii)    Hedging Obligations of the Issuer or any Restricted Subsidiary entered into in the ordinary course of business and not for the purpose of speculation;

(viii)    obligations in respect of letters of credit, performance, bid and surety bonds, completion guarantees, budget guarantees, payment obligations in connection with self-insurance or similar requirements provided by the Issuer or any Restricted Subsidiary in the ordinary course of business;

(ix)    Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of its Incurrence;

(x)    Indebtedness with respect to workers’ compensation claims or representing deferred compensation to employees incurred in the ordinary course of business;

(xi)    any Guarantee (including the Subsidiary Guaranties) by the Issuer or a Restricted Subsidiary of Indebtedness or other obligations of the Issuer or any of its Restricted Subsidiaries so long as the Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary is permitted under the terms of the Indenture;

(xii)    Indebtedness arising from agreements providing for indemnification, deposits, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Issuer or any Restricted Subsidiary (contingent obligations referred to in a footnote or footnotes to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) in the case of a disposition, the maximum liability in respect of such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being determined at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer or such Restricted Subsidiary in connection with such disposition;

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(xiii)    Non-Recourse Indebtedness, Permitted Non-Recourse Carve-Out Guarantees and Permitted Co-investments;

(xiv)    Indebtedness of the Issuer or any Restricted Subsidiary (together with any refinancing thereof) in an aggregate principal amount which, when taken together with all other Indebtedness of the Issuer and the Restricted Subsidiaries outstanding on the date of such Incurrence (other than Indebtedness permitted by clauses (i) through (xiii) above or Section 4.02(A)), does not exceed the greater of (x) three hundred and fifty million dollars ($350,000,000) and (y) five percent (5.0%) of Total Assets; and

(xv)    Indebtedness, other than in respect of borrowed money, incurred in the ordinary course of business consisting of (a) customer deposits and advance payments received; (b) take-or-pay obligations contained in supply arrangements; and (c) open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services that are not overdue for a period of more than ninety (90) days or, if overdue for more than ninety (90) days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established.

(C)    Notwithstanding the foregoing, none of the Issuer or any Subsidiary Guarantor will Incur any Indebtedness pursuant to the foregoing Section 4.02(B) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Issuer or any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Notes or the applicable Subsidiary Guaranty to at least the same extent as such Subordinated Obligations.

(D)    For purposes of determining compliance with this Section 4.02: (1) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness set forth in Section 4.02(B), the Issuer, in its sole discretion, will be permitted to classify all or a portion of such item of Indebtedness at the time of Incurrence, or later reclassify all or a portion of such item of Indebtedness, in one of the clauses of Section 4.02(B) in any manner that complies with this Section 4.02; and (2) the Issuer will be entitled to divide and classify or reclassify an item of Indebtedness in more than one of the types of Indebtedness set forth in Section 4.02(B). Notwithstanding the foregoing, Indebtedness incurred under the Credit Agreement will be deemed to have been incurred under Section 4.02(B)(i) and the Issuer shall not be permitted to reclassify all or any portion of such Indebtedness. Indebtedness permitted by this Section 4.02 need not be permitted solely by reference to one provision permitting such Indebtedness, but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.02 permitting such Indebtedness. For the avoidance of doubt, the outstanding principal amount of any particular Indebtedness shall be counted only once and any obligations arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall not be double counted.

(E)    For purposes of determining compliance with any U.S. dollar restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the

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date of the Incurrence of such Indebtedness, provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness will be determined in accordance with the preceding sentence; and (2) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess will be determined on the date such Refinancing Indebtedness is Incurred.

(F)    Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, in no event shall an Incurrence of Indebtedness made on the basis of consolidated financial statements prepared in good faith to be in accordance with GAAP be subject to rescission or constitute a Default by reason of any requisite subsequent restatement of such financial statements that would have made such Incurrence prohibited at the time that it was made.

(G)    Notwithstanding anything to the contrary in this Section 4.02, if any Indebtedness for money borrowed in the form of notes (including, without limitation, Additional Notes), or any guarantees thereof, are originally issued by the Issuer or any Restricted Subsidiary in a private placement transaction and are thereafter exchanged for substantially identical notes or guarantees of the same principal amount in an exchange offer pursuant to a registration statement on Form S-4 under the Securities Act, pursuant to a customary “A/B exchange,” then, for purposes of this Section 4.02, (x) the notes and guarantees issued in such exchange will be deemed to represent the same notes and guarantees surrendered in exchange therefor in such exchange; and (y) the issuance of such notes and guarantees in such exchange will be deemed not to be a new Incurrence of Indebtedness, provided that the Incurrence of the Indebtedness represented by such notes and guarantees in such private placement did not violate this Section 4.02.

4.03    LIMITATION ON RESTRICTED PAYMENTS.

(A)    The Issuer will not, and will not permit any Restricted Subsidiary, directly or indirectly, to make a Restricted Payment if at the time the Issuer or such Restricted Subsidiary makes such Restricted Payment:

(i)    a Default shall have occurred and be continuing (or would result therefrom);

(ii)    the Issuer is not entitled to Incur an additional one dollar ($1.00) of Indebtedness pursuant to Section 4.02(A); or

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(iii)    the aggregate amount of such Restricted Payment and all other Restricted Payments made on or after the Issue Date would exceed the sum of (without duplication):

(a)    fifty percent (50%) of the Consolidated Net Income accrued during the period (treated as one accounting period) from April 1, 2011 to the end of the most recent fiscal quarter ended for which internal financial statements are available prior to the date of such Restricted Payment (or, in case such Consolidated Net Income shall be a deficit, minus one hundred percent (100%) of such deficit); plus

(b)    one hundred percent (100%) of the aggregate Net Cash Proceeds received by the Issuer from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to April 5, 2011 (other than an issuance or sale to a Subsidiary of the Issuer and other than an issuance or sale to an employee stock ownership plan or to a trust established by the Issuer or any of its Subsidiaries for the benefit of their employees) and one hundred percent (100%) of any cash capital contribution received by the Issuer from its shareholders subsequent to April 5, 2011; plus

(c)    the amount by which Indebtedness of the Issuer is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) subsequent to April 5, 2011 of any Indebtedness of the Issuer convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Issuer or the Parent (less the amount of any cash, or the fair value of any other property, distributed by the Issuer upon such conversion or exchange); plus

(d)    an amount equal to the sum of the following since April 5, 2011: (x) the net reduction in the Investments (other than Permitted Investments) made by the Issuer or any Restricted Subsidiary in any Person resulting from repurchases, repayments or redemptions of such Investments by such Person, payments of interest on Indebtedness, dividends, repayments of loans or advances, or proceeds realized on the sale of such Investment and proceeds representing the return of capital, in each case received by the Issuer or any Restricted Subsidiary since the Issue Date, and (y) to the extent such Person is an Unrestricted Subsidiary, the portion (proportionate to the Issuer’s or its Restricted Subsidiary’s equity interest in such Subsidiary) of the fair market value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided, however, that the foregoing sum in this clause (d) shall not exceed, in the case of any such Person or Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made (and treated as a Restricted Payment) by the Issuer or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

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The amount expended in any Restricted Payment, if other than in cash, will be deemed to be the fair market value of the relevant non-cash assets, as determined in good faith by the Board of Directors, whose determination will be conclusive and evidenced by a Board Resolution.

(B)    Section 4.03(A) shall not prohibit:

(i)    (A) any Restricted Payment made out of the Net Cash Proceeds of the substantially concurrent sale of, or made by exchange for, Capital Stock of the Issuer (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the Issuer or an employee stock ownership plan or to a trust established by the Issuer or any of its Subsidiaries for the benefit of their employees) subsequent to the Issue Date; or (B) any Restricted Payment made out of a substantially concurrent cash capital contribution received by the Issuer from its shareholders subsequent to the Issue Date; provided, however, that (i) such Restricted Payment shall be excluded in the calculation of the amount of Restricted Payments and (ii) the Net Cash Proceeds from such sale or such cash capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of amounts under Section 4.03(A)(iii)(b);

(ii)    any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations of the Issuer or a Subsidiary Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations which is permitted to be Incurred pursuant to Section 4.02; provided, however, that such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value shall be excluded in the calculation of the amount of Restricted Payments;

(iii)    dividends paid within sixty (60) days after the date of declaration thereof if, at such date of declaration, such dividend would have complied with this Section 4.03; provided, however, that such dividend shall be included in the calculation of the amount of Restricted Payments;

(iv)    (A) payments or distributions to employees of the Parent, the Issuer or any Restricted Subsidiary pursuant to incentive plans or other compensation arrangements approved by the Board of Directors (including, without limitation, dividends or other distributions on Capital Stock held by such employees) or (B) payments or distributions to employees of the Parent, the Issuer or any Restricted Subsidiary of “co-investment return,” “carried interest” or other form of incentive compensation or performance fees or any distribution of an equity interest in respect thereof, or any other incentive distributions from Investment Subsidiaries or Co-investment Vehicles; provided, however, that such payments or distributions under this clause (iv) shall be excluded in the calculation of the amount of Restricted Payments;

(v)    so long as no Default has occurred and is continuing, the repurchase or other acquisition (including, without limitation, by means of withholding shares upon vesting) of shares of Capital Stock of the Parent or the Issuer or any of the Issuer’s Subsidiaries from employees (including substantially full-time independent

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contractors), former employees, directors, former directors or consultants of the Issuer or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors, former directors or consultants), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of the Parent or its Subsidiaries under which such individuals purchase or sell or are granted (or are granted the option to purchase or sell) shares of such Capital Stock (including pursuant to any net exercise or net settlement provisions); provided, however, that the aggregate amount of such repurchases and other acquisitions for cash (excluding any withholding of shares upon vesting for the purpose of paying any related taxes in connection with such vesting) shall not exceed the sum of (A) fifteen million dollars ($15,000,000); (B) the Net Cash Proceeds from the sale of Capital Stock to members of management, consultants or directors of the Issuer and its Subsidiaries that occurred or occurs after April 5, 2011 (to the extent the Net Cash Proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments by virtue of Section 4.03(A)(iii)(b)); and (C) the cash proceeds of any “key man” life insurance policies that are used to make such repurchases; provided further, however, that (x) such repurchases and other acquisitions shall be excluded in the calculation of the amount of Restricted Payments; and (y) the Net Cash Proceeds from such sale shall be excluded from the calculation of amounts under Section 4.03(A)(iii)(b);

(vi)    dividends to the Parent to be used by the Parent solely to pay its franchise taxes and other fees required to maintain its corporate existence and to pay for general corporate and overhead expenses (including salaries, insurance and other compensation of the employees) incurred by the Parent in the ordinary course of its business; provided, however, that such dividends shall not exceed five million dollars ($5,000,000) in any calendar year; provided further, however, that such dividends shall be excluded in the calculation of the amount of Restricted Payments;

(vii)    so long as no Event of Default has occurred and is continuing, dividends or other payments to Parent to be used by Parent to pay dividends to the holders of the Parent’s Series A Preferred Stock issued and outstanding as of the Issue Date, provided, however, that the aggregate amount of such dividends or other payments shall not exceed seventeen million two hundred and fifty thousand dollars ($17,250,000) per year (provided that any unused amounts in any year continue to carry forward and increase such limit in each subsequent year); provided further, however, that such dividends or other payments shall be excluded in the calculation of the amount of Restricted Payments;

(viii)    payments to the Parent in respect of federal, state and local taxes directly attributable to (or arising as a result of) the operations of the Issuer and its consolidated Subsidiaries; provided, however, that the amount of such payments in any fiscal year shall not exceed the amount that the Issuer and its consolidated Subsidiaries would be required to pay in respect of federal, state and local taxes for such fiscal year were the Issuer to pay such taxes as a stand-alone taxpayer (whether or not all such amounts are actually used by the Parent for such purposes); provided further, however, that such payments shall be excluded in the calculation of the amount of Restricted Payments;

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(ix)    Investments made pursuant to commitments to Invest if at the date such commitment was made, such Investment would have complied with this Section 4.03; provided, however, that such Investment shall be excluded in the calculation of the amount of Restricted Payments;

(x)    upon the occurrence of a Change of Control (or similarly defined term in other Indebtedness) and within ninety (90) days after completion of the Fundamental Change Offer (including the purchase of all Notes tendered), any repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of any Indebtedness of the Issuer or the Subsidiary Guarantors that is contractually subordinated to the Notes or to any Subsidiary Guaranty that is required to be repurchased or redeemed pursuant to the terms thereof as a result of such Change of Control (or similarly defined term in other Indebtedness), at a purchase price not greater than one hundred and one percent (101%) of the outstanding principal amount or liquidation preference thereof (plus accrued and unpaid interest and liquidated damages, if any);

(xi)    upon the occurrence of a Fundamental Change (or similarly defined term in the certificate of designation of the Parent’s Series A Preferred Stock) and within 90 days after completion of the Fundamental Change Offer (including the purchase of all Notes tendered), any repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of the Parent’s Series A Preferred Stock (or any dividend or other payment to Parent for such purpose) that is required to be repurchased or redeemed pursuant to the terms thereof as a result of such Fundamental Change (or similarly defined term in the certificate of designation of Parent’s Series A Preferred Stock), at a purchase price not greater than the purchase prices specified in the certificate of designation of Parent’s Series A Preferred Stock as in effect on the Issue Date;

(xii)    within ninety (90) days after completion of any offer to repurchase Notes pursuant to Section 4.05 (including the purchase of all Notes tendered), any repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of any Indebtedness of the Issuer or the Subsidiary Guarantors that is contractually subordinated to the Notes or to any Subsidiary Guaranty that is required to be repurchased or redeemed pursuant to the terms thereof as a result of such Asset Disposition (or similarly defined term in other Indebtedness), at a purchase price not greater than one hundred percent (100%) of the outstanding principal amount or liquidation preference thereof (plus accrued and unpaid interest and liquidated damages, if any);

(xiii)    the payment of any amounts in respect of Capital Stock by any Restricted Subsidiary organized as a partnership or a limited liability company or other pass-through entity: (a) to the extent of capital contributions made to such Restricted Subsidiary (other than capital contributions made to such Restricted Subsidiary by the

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Issuer or any Restricted Subsidiary); or (b) to the extent necessary for holders thereof to pay taxes with respect to the net income of such Restricted Subsidiary; provided, however, that except in the case of clause (b), no Default or Event of Default has occurred and is continuing at the time of such Restricted Payment or would result therefrom; provided, further, however, such amounts shall be excluded in the calculation of the amount of Restricted Payments;

(xiv)    the payment of any dividend or distributions by a Restricted Subsidiary of the Issuer to the holders of its Capital Stock pursuant to the terms of the relevant partnership agreement, limited liability company operating agreement or other governing document of the Restricted Subsidiary; provided, however, that such amounts shall be excluded in the calculation of the amount of Restricted Payments;

(xv)    dividends or other distributions on Capital Stock (other than Disqualified Stock) of the Issuer or any Restricted Subsidiary, which Capital Stock was issued, sold or transferred as consideration in connection with the direct or indirect acquisition of real property (including any back-to-back issuance, sale or transfer to the Issuer or any Restricted Subsidiary), which dividends or distributions shall not exceed twenty five million dollars ($25,000,000); and

(xvi)    Restricted Payments in an aggregate amount which, when taken together with all Restricted Payments made pursuant to this clause (xvi) which have not been repaid, does not exceed the greater of (x) two hundred million dollars ($200,000,000); and (y) three percent (3.0%) of Total Assets; provided, however, that (A) at the time of such Restricted Payments, no Default shall have occurred and be continuing (or result therefrom) and (B) such Restricted Payments shall be excluded in the calculation of the amount of Restricted Payments.

(C)    Not later than the date of making any Restricted Payment, the Issuer will deliver to the Trustee an Officer’s Certificate stating that the Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.03 were calculated.

(D)    Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, in no event shall a Restricted Payment made on the basis of consolidated financial statements prepared in good faith to be in accordance with GAAP be subject to rescission or constitute a Default by reason of any requisite subsequent restatement of such financial statements that would have made such Restricted Payment prohibited at the time that it was made.

(E)    For purposes of determining compliance with this Section 4.03, (1) in the event that a Restricted Payment meets the criteria of more than one of the types of Restricted Payments set forth in the sub-clauses to Section 4.03(B), the Issuer, in its sole discretion, will be permitted to classify all or a portion of such Restricted Payment at the time it is made, or later reclassify all or a portion of such Restricted Payment, in one of such sub-clauses in any manner that complies with this Section 4.03; and (2) the Issuer will be entitled to divide and classify a Restricted Payment in more than one of the types of Restricted Payments described in the sub-clauses to Section 4.03(B).

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4.04    LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED SUBSIDIARIES.

(A)    The Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (a) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness owed to the Issuer; (b) make any loans or advances to the Issuer; or (c) transfer any of its property or assets to the Issuer, except:

(i)    with respect to clauses (a), (b) and (c) of the first sentence of this Section 4.04(A),

(a)    any encumbrance or restriction pursuant to an agreement of the Issuer or any of its Subsidiaries in effect at or entered into on the Issue Date;

(b)    any encumbrance or restriction contained in the terms of any agreement pursuant to which Indebtedness was issued if (x) either (i) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a covenant default contained in such Indebtedness or agreement or (ii) the Issuer determines at the time such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings or agreements (as determined by the Issuer in good faith);

(c)    any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Issuer (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Issuer) and outstanding on such date;

(d)    any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (a), (b) or (c) of this Section 4.04(A)(i) or this clause (d) or contained in any amendment to an agreement referred to in clause (a), (b) or (c) of this Section 4.04(A)(i) or this clause (d); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable, taken as a whole, to the Noteholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;

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(e)    any encumbrance or restriction pursuant to customary restrictions on, or customary conditions to the payment of dividends or other distributions on, equity interests owned by the Issuer or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, to the extent encumbrances or restrictions apply solely to the income of such joint venture or similar enterprise;

(f)    any encumbrance or restriction pursuant to customary restrictions contained in (i) agreements governing any Non-Recourse Indebtedness or Permitted Co-investments; or (ii) the terms of the relevant partnership agreement, limited liability company operating agreement or other governing document of the entity that is the borrower (or the direct parent of the borrower) under any Non-Recourse Indebtedness or of any Co-investment Vehicle;

(g)    any encumbrance or restriction contained in the terms of any agreement governing Indebtedness directly or indirectly secured by real property or other related assets that are customary for real property financing transactions, such as cash collateral accounts or impounds or reserves required for payment of taxes, insurance, security deposits, capital expenditures and repairs, interest and tenant improvements and leasing commissions; and

(h)    any encumbrance or restriction pursuant to applicable law; and

(ii)    with respect to clause (c) of the first sentence of this Section 4.04(A) only,

(a)    any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests or licenses of intellectual property to the extent such provisions restrict the transfer of the lease or the property leased or licensed thereunder;

(b)    restrictions contained in security agreements, mortgages or other agreements securing Indebtedness of a Restricted Subsidiary or any agreement governing Non-Recourse Indebtedness to the extent such restrictions restrict the transfer of the property subject to such security agreements, mortgages or Non-Recourse Indebtedness;

(c)    restrictions on the transfer of assets subject to any Lien permitted under the Indenture imposed by the holder of such Lien;

(d)    any restriction with respect to a Restricted Subsidiary or its assets imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; and

(e)    arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of the property or assets of the Issuer or any Restricted Subsidiary in a manner material to the Issuer and its Restricted Subsidiaries, taken as a whole.

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4.05    LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK.

(A)    The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:

(i)    the Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all noncash consideration), as determined in good faith by members of the Issuer’s senior management, of the shares and assets subject to such Asset Disposition;

(ii)    at least seventy five percent (75%) of the consideration thereof received by the Issuer or such Restricted Subsidiary is in the form of cash or cash equivalents, Temporary Cash Investments or Replacement Assets or a combination of cash and cash equivalents, Temporary Cash Investments, and Replacement Assets; provided, however, that with respect to the sale of one or more real estate properties or related property, plant and equipment, or loans secured by real estate, up to seventy five percent (75%) of the consideration may consist of Indebtedness of the purchaser of such real estate properties or related property, plant and equipment, or loans secured by real estate, so long as such Indebtedness is secured by a first or second priority Lien on the real estate property or properties or related property, plant and equipment, or loans secured by real estate, sold;

(iii)    an amount equal to one hundred percent (100%) of the Net Available Cash from such Asset Disposition is applied by the Issuer (or such Restricted Subsidiary, as the case may be):

(a)    first, to the extent the Issuer elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase secured Indebtedness of the Issuer or any Restricted Subsidiary or Indebtedness (other than Disqualified Stock) of any other Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer) within one (1) year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;

(b)    second, to the extent of the balance of such Net Available Cash after application in accordance with clause (a), to the extent the Issuer elects, to make a capital expenditure or to acquire Replacement Assets within one (1) year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and

(c)    third, to the extent of the Excess Proceeds, to make an offer to the Holders of the Notes (and to holders of other Senior Indebtedness of the Issuer designated by the Issuer) to purchase Notes (and such other Senior Indebtedness of the Issuer) pursuant to and subject to the conditions contained in the Indenture;

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provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (a) or (c) above (excluding temporary reductions of revolving credit indebtedness made pursuant to the last sentence of Section 4.05(B)), the Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided further, however, the Issuer will be deemed to have complied with clause (b) above if and to the extent that, within three hundred and sixty five (365) days after the later of the Asset Disposition or the receipt of Net Available Cash, the Issuer or any of its Restricted Subsidiaries has entered into and not abandoned or rejected a binding agreement to make a capital expenditure or to acquire Replacement Assets, and that such capital expenditure or acquisition is thereafter completed within one hundred and eighty (180) days after the end of such three hundred and sixty five (365) day period.

(B)    The Net Available Cash of an Asset Disposition not applied pursuant to Section 4.05(A)(iii)(a) or Section 4.05(A)(iii)(b) above constitute “Excess Proceeds.” Excess Proceeds of less than fifty million dollars ($50,000,000) will be carried forward and accumulated. When accumulated Excess Proceeds equal or exceed such amount, the Issuer must, within thirty (30) days, make an offer to purchase the Notes, in accordance with Section 4.05(A)(iii)(c). Pending application of Net Available Cash pursuant to this Section 4.05, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.

(C)    In the event the Issuer make an offer to purchase the Notes pursuant to Section 4.05(A)(iii)(c), (i) if Notes in an aggregate principal amount less than or equal to the applicable Excess Proceeds are duly tendered pursuant to such offer to purchase, then the Issuer will purchase all such tendered Notes, and (ii) if Notes in an aggregate principal amount in excess of the applicable Excess Proceeds are duly tendered pursuant to such offer to purchase, then the Issuer will purchase tendered Notes having an aggregate principal amount equal to the applicable Excess Proceeds on a pro rata basis, with adjustments so that only Notes in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof will be purchased.

(D)    For the purposes of this Section 4.05, the following are deemed to be cash or cash equivalents:

(i)    the assumption of Indebtedness of the Issuer or any Restricted Subsidiary and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and

(ii)    securities received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 180 days of receipt.

(E)    In the event of an Asset Disposition that requires the purchase of Notes (and other Senior Indebtedness of the Issuer) pursuant to Section 4.05(A)(iii)(c), the Issuer will purchase Notes tendered pursuant to an offer by the Issuer for the Notes (and such other Senior

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Indebtedness of the Issuer) at a purchase price of one hundred percent (100%) of their principal amount (or, in the event such other Senior Indebtedness of the Issuer was issued with significant original issue discount, one hundred percent (100%) of the accreted value thereof), without premium, plus accrued but unpaid interest, if any, (or, in respect of such other Senior Indebtedness of the Issuer, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness of the Issuer) in accordance with the procedures (including prorating in the event of oversubscription) set forth in the Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Issuer will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof. The Issuer shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness of the Issuer) pursuant to this Section 4.05 if the Excess Proceeds are less than five million dollars ($5,000,000) (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).

(F)    The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes pursuant to this Section 4.05. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.05, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.05 by virtue of its compliance with such securities laws or regulations.

4.06    LIMITATION ON AFFILIATE TRANSACTIONS.

(A)    The Issuer will not, and will not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Issuer (an “Affiliate Transaction”) unless:

(i)    the terms of the Affiliate Transaction are no less favorable to the Issuer or such Restricted Subsidiary than those that could be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate;

(ii)    if such Affiliate Transaction involves an amount in excess of the greater of twenty five million dollars ($25,000,000) and one percent (1%) of Total Assets, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Issuer disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (i) above are satisfied and have approved such Affiliate Transaction as evidenced by a resolution of the Board of Directors; and

(iii)    if such Affiliate Transaction involves an amount in excess of one hundred million dollars ($100,000,000), the Board of Directors shall also have received a written opinion from an Independent Qualified Party to the effect that such

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Affiliate Transaction is fair, from a financial standpoint, to the Issuer or the applicable Restricted Subsidiary or is not less favorable to the Issuer or the applicable Restricted Subsidiary than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who was not an Affiliate.

(B)    Section 4.06(A) shall not prohibit:

(i)    any Investment or other Restricted Payment, in each case not prohibited pursuant to Section 4.03;

(ii)    any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment or compensation arrangements, stock options and stock ownership plans approved by the Board of Directors (for the avoidance of doubt, including, without limitation, securities of, and stock options and stock ownership plans relating to, the Parent, the Issuer or any of their respective Subsidiaries);

(iii)    loans or advances to employees or consultants in the ordinary course of business of the Issuer or its Restricted Subsidiaries;

(iv)    the payment of reasonable fees and compensation to, or the provision of employee benefit arrangements and indemnity for the benefit of, directors, officers, employees and consultants of the Issuer and its Restricted Subsidiaries in the ordinary course of business;

(v)    any transaction between or among the Issuer, any Restricted Subsidiary, any Co-investment Vehicle or joint venture or similar entity (including any separate account or investment program managed, operated or sponsored by an Investment Subsidiary) which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, Co-investment Vehicle, joint venture or similar entity (including any separate account or investment program managed, operated or sponsored by an Investment Subsidiary);

(vi)    (1) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Issuer or the Parent; (2) the issuance, sale or transfer of Capital Stock (other than Disqualified Stock) of any Restricted Subsidiary as consideration (at the time of such issuance, sale or transfer pursuant to this clause (1) at least equal to fair market value (as determined in good faith by the Board of Directors of the Issuer)) in connection with the direct or indirect acquisition of real property; or (3) the purchase of any securities of the Issuer or the Parent by an Affiliate of the Issuer pursuant to a public offering (or pursuant to a private offering under Rule 144A under the Securities Act (or any similar transaction) on customary terms whereby such securities are purchased by one or more broker-dealers and resold to qualified institutional buyers), which purchase by such Affiliate under this clause (3) is on the same terms as other investors in such offering (other than any waiver or non-applicability of underwriters’ (or initial purchasers’) discounts or commissions);

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(vii)    the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) or warrant agreement to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (vii) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Noteholders in any material respect;

(viii)    any agreement as in effect on the Issue Date and described or incorporated by reference in the Prospectus Supplement, or any renewals, extensions or amendments of any such agreement (so long as such renewals, extensions or amendments are not less favorable to the Issuer or the Restricted Subsidiaries) and the transactions evidenced thereby; and

(ix)    transactions with customers, clients, suppliers or purchasers or sellers of goods or services in each case in the ordinary course of business and otherwise in compliance with the terms of the applicable Indenture which are fair to the Issuer or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party.

4.07    LIMITATION ON LIENS.

The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit to exist any Lien (the “Initial Lien”) of any nature whatsoever on any of its properties (including Capital Stock of a Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired, securing any Obligations, other than Permitted Liens, without effectively providing that the Notes (or a Subsidiary Guaranty in the case of an Initial Lien of a Subsidiary Guarantor) shall be secured equally and ratably with (or, in the event the Lien related to Subordinated Obligations, prior to) the Obligations so secured for so long as such Obligations are so secured. Any Lien created for the benefit of the Holders of the Notes pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.

4.08    LIMITATION ON SALE/LEASEBACK TRANSACTIONS.

The Issuer will not, and will not permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with respect to any property unless:

(A)    the Issuer or such Restricted Subsidiary would be entitled to (A) Incur Indebtedness in an amount equal to the Attributable Debt with respect to such Sale/Leaseback Transaction pursuant to Section 4.02 and (B) create a Lien on such property securing such Attributable Debt without equally and ratably securing the Notes pursuant to Section 4.07;

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(B)    the net proceeds received by the Issuer or any Restricted Subsidiary in connection with such Sale/ Leaseback Transaction are at least equal to the fair value (as determined by the Board of Directors of the Issuer) of such property; and

(C)    the Issuer applies the proceeds of such transaction in compliance with Section 4.05.

4.09    FUTURE GUARANTORS.

After the Issue Date, the Issuer will cause each domestic Restricted Subsidiary (other than (i) any Excluded Subsidiary and (ii) any Restricted Subsidiary prohibited from providing a Guarantee by any agreement governing Non-Recourse Indebtedness (or the terms of the relevant partnership agreement, limited liability company operating agreement or other governing document of the entity that is the borrower (or the direct parent of the borrower) under any Non-Recourse Indebtedness), any joint venture agreement or the terms of any Co-investment Vehicle or any separate account or investment program managed, operated or sponsored by an Investment Subsidiary) to execute and deliver to the Trustee a Guaranty Agreement pursuant to which such domestic Restricted Subsidiary will Guarantee payment of the Notes on the same terms and conditions as those set forth in the Indenture.

A Restricted Subsidiary required to provide a Guaranty Agreement shall execute a Guaranty Agreement in the form of a supplemental indenture in the form of Exhibit C hereto and deliver an Opinion of Counsel to the Trustee to the effect such the supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and constitutes a valid and binding obligation of such Restricted Subsidiary, enforceable against such Restricted Subsidiary in accordance with its terms (subject to customary exceptions).

For the avoidance of doubt, the Issuer may, in its sole discretion, but is not required to, cause any Excluded Subsidiary to execute and deliver to the Trustee a Guaranty Agreement.

Notwithstanding anything to the contrary set forth above in this Section 4.09, this Section 4.09 will be subject to Section 4.16.

4.10    SEC REPORTS.

This Section 4.10 shall apply to the Notes in lieu of Section 4.2 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 4.10 for purposes of the Notes.

Notwithstanding that the Issuer may not be subject to the reporting requirements of Sections 13(a) or 15(d) of the Exchange Act, the Issuer will file with the SEC and make available to the Noteholders and deliver a copy to the Trustee within fifteen (15) days after it files them with the SEC such annual reports and such information, documents and other reports as are specified in Sections 13(a) and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents and other reports to be so filed with the SEC at the times specified for the filings of such information, documents and reports under such Sections; provided, however, that the Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Issuer will make available such

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information to Noteholders and deliver a copy to the Trustee within fifteen (15) days after the time the Issuer would be required to file such information with the SEC if it were subject to Sections 13(a) or 15(d) of the Exchange Act; provided further, however, that (a) so long as the Parent is the Guarantor of the Notes, the reports, information and other documents required to be filed and provided as set forth in this Section 4.10 may, at the Issuer’s option, be filed by and be those of the Parent rather than the Issuer; and (b) in the event that the Parent conducts any business or holds any significant assets other than the Capital Stock of the Issuer at the time of filing and providing any such report, information or other document containing financial statements of the Parent, the Parent shall include in such report, information or other document summarized financial information (as defined in Rule 1-02(bb) of Regulation S-X promulgated by the SEC) with respect to the Issuer; provided further, however, that in no event shall the Issuer or the Parent be required to make available to the Trustee or Noteholders any material for which the Issuer or the Parent is seeking, or has received, confidential treatment by the SEC or any correspondence with the SEC or its staff. For purposes of this Section 4.10, reports, information and documents publicly available on the SEC’s EDGAR system (or any successor thereto) shall be deemed to be available to the Trustee and Noteholders. Delivery of reports to the Trustee is for information purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive notice of any information contained therein including compliance with any covenants under the Indenture (as to which the Trustee is entitled to rely upon Officer’s Certificates).

4.11    DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.

(A)    The Board of Directors or the Audit Committee or the Parent’s management may designate any Subsidiary of the Issuer (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the Issuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that either (A) the Subsidiary to be so designated has total assets of one thousand dollars ($1,000) or less or (B) if such Subsidiary has assets greater than one thousand dollars ($1,000), such designation would be permitted under Section 4.03.

(B)    The Board of Directors or the Audit Committee or the Parent’s management may designate any Unrestricted Subsidiary to be a Restricted Subsidiary (which designation, if not by the Board of Directors or the Audit Committee of the Board of Directors, will be evidenced in an Officer’s Certificate that is delivered to the Trustee); provided, however, that immediately after giving effect to such designation (A) the Issuer could Incur one dollar ($1.00) of additional Indebtedness pursuant to Section 4.02(A) (irrespective of whether such Section 4.02(A) remains in effect) and (B) no Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation complies with this Section 4.11(B).

(C)    

(i)    A Subsidiary previously designated an Unrestricted Subsidiary which at any time fails to meet the qualifications set forth in Section 4.11(A) will be deemed to become at that time a Restricted Subsidiary, subject to the consequences set forth in Section 4.11(E).

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(ii)    The Board of Directors may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if the designation would not cause a Default.

(iii)    Once designated as an Unrestricted Subsidiary, such Unrestricted Subsidiary will remain an Unrestricted Subsidiary, subject to Section 4.11(F).

(D)    Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary:

(i)    all existing Investments of the Issuer and the Restricted Subsidiaries therein (valued at the Issuer’s proportional share of the fair market value of its assets less liabilities) will be deemed made at that time;

(ii)    all existing transactions between it and the Issuer or any Restricted Subsidiary will be deemed entered into at that time;

(iii)    such Unrestricted Subsidiary is released at that time from its Guaranty, if any; and

(iv)    such Unrestricted Subsidiary will cease to be subject to the provisions of the Indenture as a Restricted Subsidiary.

(E)    Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted Subsidiary:

(i)    all of its Indebtedness and Disqualified Stock or Preferred Stock will be deemed Incurred at that time for purposes of Section 4.02;

(ii)    Investments therein previously charged under Section 4.03 will be credited thereunder;

(iii)    it may be required to issue a Guaranty Agreement of the Notes pursuant to Section 4.09; and

(iv)    it will thenceforward be subject to the provisions of the Indenture as a Restricted Subsidiary.

(F)    Any designation by the Board of Directors of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary will be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to the designation and an Officer’s Certificate certifying that the designation complied with the foregoing provisions.

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4.12    COMPLIANCE CERTIFICATES.

This Section 4.12 shall apply to the Notes in lieu of Section 4.3 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 4.12 for purposes of the Notes.

(A)    If any Notes are outstanding, the Issuer shall deliver to the Trustee, within one hundred and twenty (120) days after the end of each fiscal year of the Issuer, an Officer’s Certificate (executed by the Chief Executive Officer or Chief Financial Officer of the Issuer) stating that (x) such officer has conducted or supervised a review of the activities of the Issuer and its Restricted Subsidiaries for the previous fiscal year and their performance under the Indenture and (y) to the knowledge of such officer, each Default, if any, that has occurred during the previous fiscal year of the Issuer and its nature and status.

(B)    The Issuer shall deliver to the Trustee, within thirty (30) days after the occurrence of any event that would constitute a Default, an Officer’s Certificate specifying such Default, its status and what action the Issuer is taking or proposes to take in respect thereof.

4.13    EXISTENCE.

This Section 4.13 shall apply to the Notes in lieu of Section 4.5 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 4.13 for purposes of the Notes.

The Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the existence of each of its Restricted Subsidiaries in accordance with its and their respective organizational documents, and the material rights, licenses and franchises of the Issuer and each Restricted Subsidiary, provided, however, that the Issuer is not required to preserve any such right, license or franchise, or the existence of any Restricted Subsidiary, if the maintenance or preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Restricted Subsidiaries taken as a whole; provided, further, that this Section 4.13 shall not prohibit any transaction otherwise permitted by Section 4.05 or Article V.

4.14    PAYMENT OF TAXES AND OTHER CLAIMS.

The Issuer will pay or discharge, and cause each of its Subsidiaries to pay or discharge before the same become delinquent (i) all material taxes, assessments and governmental charges levied or imposed upon the Issuer or any Subsidiary or its income or profits or property, and (ii) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon the property of the Issuer or any Subsidiary, other than any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established.

4.15    MAINTENANCE OF PROPERTIES AND INSURANCE.

(A)    The Issuer will cause all properties (other than immaterial properties) used or useful in the conduct of its business or the business of any of its Restricted Subsidiaries to be

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maintained and kept in good condition, repair and working order as in the judgment of the Issuer may be necessary so that the business of the Issuer and its Restricted Subsidiaries may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 4.15 shall prevent the Issuer or any Restricted Subsidiary from discontinuing the use, operation or maintenance of any of such properties or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Issuer, desirable in the conduct of the business of the Issuer and its Restricted Subsidiaries taken as a whole.

(B)    The Issuer will provide or cause to be provided, for itself and its Restricted Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds customarily insured against by corporations similarly situated and owning like properties, including, but not limited to, products liability insurance and public liability insurance, with reputable insurers, in such amounts, with such deductibles and by such methods as are customary for corporations similarly situated in the industry in which the Issuer and its Restricted Subsidiaries are then conducting business.

4.16    SUSPENSION OF APPLICABILITY OF CERTAIN COVENANTS UPON ACHIEVING CERTAIN RATINGS.

Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, if on any date following August 23, 2021,

(A)    the Notes are rated by two (2) or more of any of Moody’s, S&P and Fitch as Baa3 or better (in the case of Moody’s) or BBB- or better (in the case of S&P or Fitch) (or, if any such entity ceases to rate the Notes for reasons outside of the control of the Issuer, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization”, as defined in Section 3(a)(62) of the Exchange Act, selected by the Issuer as a replacement agency); and

(B)    no Default or Event of Default shall have occurred and be continuing,

then, beginning on such date and subject to the provisions of the following paragraph:

(i)    the covenants in Sections 4.02, 4.03, 4.04 and 4.05 and in Section 5.01(C) will be suspended;

(ii)    the Subsidiary Guaranty of each Subsidiary Guarantor will be automatically and unconditionally released and discharged, without the need of any action on the part of such Subsidiary Guarantor, the Parent or the Trustee or otherwise (subject to reinstatement as provided below), provided that at the time the conditions set forth in clauses (A) and (B) of this Section 4.16 are satisfied, there is no outstanding Indebtedness of the Parent, the Issuer or any Restricted Subsidiary that is Guaranteed by such Subsidiary Guarantor (other than pursuant to (x) a Guarantee that would constitute a Permitted Non-Recourse Carve-Out Guarantee or (y) Guarantees that, together with all other Guarantees relying on the exception set forth in this clause (y), do not in the aggregate exceed the greater of (1) three hundred and fifty million dollars ($350,000,000) and (2) five percent (5%) of Total Assets);

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(iii)    the provisions of Section 4.09 will be suspended with respect to the requirement to issue any Subsidiary Guaranty that would qualify to be suspended pursuant to the preceding clause (ii); and

(iv)    the requirements set forth in Section 5.01(C) will be suspended;

As soon as reasonably practicable following each such suspension, if any, the Company shall provide notice of the same to the Trustee and the Holders.

For the avoidance of doubt, if the condition set forth in the proviso to of clause (ii) above ceases to be satisfied with respect to a Subsidiary whose Subsidiary Guaranty is suspended in accordance with such clause (ii), then such suspension will automatically lapse and the Issuer will cause such Subsidiary to become a Guarantor in accordance with Section 4.09 to the extent required by the terms of Section 4.09.

Notwithstanding the foregoing, if, after such a suspension has commenced, the condition set forth in Section 4.16(A) ceases to be satisfied, then (1) the foregoing covenants and provisions will be reinstituted as of and from the date of such rating decline; and (2) the suspension of each Subsidiary Guaranty pursuant to clause (ii) above will terminate, without the need for any action by the Issuer, any Subsidiary Guarantor, the Parent or the Trustee or otherwise, and such Subsidiary Guaranty shall be automatically reinstated and the Issuer shall cause such Subsidiary Guarantor to take all actions necessary or appropriate to evidence such Subsidiary Guaranty. For the avoidance of doubt, calculations under the reinstated covenant in Section 4.03 will be made as if such covenant had been in effect since April 1, 2011, except that no default will be deemed to have occurred solely by reason of a Restricted Payment made prior to August 23, 2021 or during the time such that covenant was suspended.

V.    SUCCESSORS

This Article V shall apply to the Notes in lieu of Article V of the Base Indenture, which shall be deemed to be replaced in its entirety by this Article V for purposes of the Notes.

5.01    WHEN ISSUER MAY MERGE, ETC.

The Issuer will not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:

(A)    the resulting, surviving or transferee Person (the “Successor Company”) shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Issuer) shall expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, all the obligations of the Issuer under the Notes and the Indenture;

(B)    immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;

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(C)    immediately after giving pro forma effect to such transaction, the Successor Company would be able to Incur an additional one dollar ($1.00) of Indebtedness pursuant to Section 4.02(A); and

(D)    the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture;

provided, however, that clause (C) will not be applicable to (x) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Issuer or (y) the Issuer merging with an Affiliate of the Issuer solely for the purpose and with the sole effect of reincorporating the Issuer in another jurisdiction.

The Successor Company will be the successor to the Issuer and shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under the Indenture, and the predecessor Issuer, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Notes.

5.02    WHEN SUBSIDIARY GUARANTORS MAY MERGE, ETC.

The Issuer will not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:

(A)    except in the case of a Subsidiary Guarantor that has been disposed of in its entirety to another Person (other than to the Issuer or an Affiliate of the Issuer), whether through a merger, consolidation or sale of Capital Stock or assets, if in connection therewith the Issuer provides an Officer’s Certificate to the Trustee stating that the Issuer will comply with its obligations under Section 4.05 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guaranty Agreement, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty;

(B)    immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and

(C)    the Issuer delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guaranty Agreement, if any, complies with the Indenture.

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5.03    WHEN THE PARENT MAY MERGE, ETC.

The Parent will not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:

(A)    the resulting, surviving or transferee Person (if not the Parent) shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guaranty Agreement, all the obligations of the Parent, if any, under its Guaranty;

(B)    immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and

(C)    the Issuer delivers to the Trustee an Officer’s Certificate stating that such consolidation, merger or transfer and such Guaranty Agreement, if any, complies with the Indenture.

VI.    DEFAULTS AND REMEDIES

6.01    EVENTS OF DEFAULT.

In lieu of the Events of Default enumerated in Section 6.1 of the Base Indenture, an “Event of Default” is deemed to occur with respect to the Notes if and only if:

(i)    a default in the payment of interest on the Notes when due, continued for thirty (30) days;

(ii)    a default in the payment of principal of any Note when due at its Stated Maturity, upon redemption, upon required purchase, upon declaration of acceleration or otherwise;

(iii)    the failure by the Issuer or any Guarantor to comply with its obligations under Article V;

(iv)    the failure by the Issuer or any Guarantor, as the case may be, to comply for sixty (60) days after receipt of written notice with any of its agreements contained in the Indenture (other than any other agreement specifically referred to in any of the other clauses of this definition of Event of Default), including its obligations under Sections 4.01 (other than a failure to purchase Notes), 4.02, 4.03, 4.04, 4.05 (other than a failure to purchase Notes), 4.06, 4.07, 4.08 or 4.09;

(v)    the failure by the Issuer or the Parent, as the case may be, to comply for one hundred and eighty (180) days after receipt of written notice with any of its obligations under Section 4.10 (provided that, if applicable, failure by the Issuer or the Parent to comply with the provisions of TIA §314(a) will not in itself be deemed a Default or an Event of Default under the Indenture);

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(vi)    (a) Indebtedness (other than Non-Recourse Indebtedness) of the Issuer, any Subsidiary Guarantor or any Significant Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds seventy five million dollars ($75,000,000);

(vii)    an involuntary case or other proceeding is commenced against the Issuer, any Subsidiary Guarantor or any Significant Subsidiary with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and unstayed for a period of sixty (60) days; or an order for relief is entered against the Issuer, any Subsidiary Guarantor or any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect;

(viii)    the Issuer, any Subsidiary Guarantor or any Significant Subsidiary (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law; (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer, any Subsidiary Guarantor or any Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, any Subsidiary Guarantor or any Significant Subsidiary; or (iii) effects any general assignment for the benefit of creditors (an Event of Default specified in clause (vii) or this clause (viii) a “bankruptcy default”); or

(ix)    any final judgment or decree for the payment of money (other than judgments which are covered by enforceable insurance policies issued by solvent carriers) in excess of fifty million dollars ($50,000,000) is entered against the Issuer, any Subsidiary Guarantor or any Significant Subsidiary, remains outstanding for a period of sixty (60) consecutive days following such judgment becoming final and is not discharged, waived or stayed within ten (10) days after notice; or

(x)    the Parent Guaranty or a Subsidiary Guaranty ceases to be in full force and effect (other than in accordance with the terms of such Guaranty) or a Guarantor denies or disaffirms its obligations under its Guaranty;

provided, however, that a default under clause (iv), (v) or (ix) will not constitute an Event of Default until the Trustee notifies the Issuer or the Holders of twenty five percent (25%) in aggregate principal amount of the outstanding Notes notify the Issuer with a copy to the Trustee of the default in writing and the Issuer does not cure such default within the time specified after receipt of such notice.

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6.02    ACCELERATION; RESCISSION AND ANNULMENT.

This Section 6.02 shall apply to the Notes in lieu of Sections 6.2 and 6.13 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 6.02 for purposes of the Notes.

If an Event of Default, other than a bankruptcy default with respect to the Issuer, occurs and is continuing, then the Trustee or the Holders of at least twenty five percent (25%) in aggregate principal amount of the outstanding Notes may, by written notice to the Issuer (and to the Trustee if the notice is given by the Holders), declare the principal of and accrued but unpaid interest, if any, on all the Notes to be immediately due and payable. Upon such declaration, such principal and interest shall be due and payable immediately. However, if a bankruptcy default with respect to the Issuer occurs and is continuing, then the principal of and interest on all the Notes will ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders of the Notes.

In the event of any Event of Default specified under Section 6.01(vi), such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if, within thirty (30) days after such Event of Default arose: (a) Holders thereof have, pursuant to this Section 6.02, rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or (b) the default that is the basis for such Event of Default has been cured.

The Holders of a majority in principal amount of the outstanding Notes may, by written notice to the Issuer and to the Trustee, waive all past defaults and rescind and annul a declaration of acceleration and its consequences if:

(A)    all existing Events of Default, other than the nonpayment of the principal of, and interest on, the Notes that have become due solely by the declaration of acceleration, have been cured or waived; and

(B)    the rescission would not conflict with any judgment or decree of a court of competent jurisdiction.

Except as otherwise provided in this Section 6.02, Section 9.02 and Section 6.8 of the Base Indenture, the Holders of a majority in principal amount of the outstanding Notes may, by notice to the Trustee, waive an existing Default and its consequences. Upon such waiver, the Default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, but no such waiver will extend to any subsequent or other Default or impair any right consequent thereon.

6.03    LIMITATION ON SUITS.

This Section 6.03 shall apply to the Notes in lieu of Section 6.7 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 6.03 for purposes of the Notes.

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Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless:

(A)    such Holder has previously given the Trustee written notice that an Event of Default is continuing;

(B)    Holders of at least twenty five percent (25%) in aggregate principal amount of the outstanding Notes have requested the Trustee to pursue the remedy;

(C)    such Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense;

(D)    the Trustee has not complied with such request within sixty (60) days after the receipt thereof and the offer of security or indemnity; and

(E)    Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction inconsistent with such request within such sixty (60) day period.

6.04    CONTROL BY HOLDERS.

For purposes of the Notes, Section 6.12(c) of the Base Indenture shall be deemed to be amended by adding, immediately after the words “personal liability” therein, the phrase “or would be unduly prejudicial to the rights of any other Holder”.

6.05    APPLICATION OF MONEY COLLECTION.

For purposes of the Notes, Section 6.6 of the Base Indenture shall be deemed to be amended by inserting, immediately before the period at the end of such Section, the phrase “or as otherwise directed by a court of competent jurisdiction”.

6.06    RESTORATION OF RIGHTS AND REMEDIES.

This Section 6.06 shall apply to the Notes in lieu of Section 6.9 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 6.06 for purposes of the Notes.

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

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VII.    TRUSTEE

7.01    DUTIES OF TRUSTEE.

(A)    For purposes of the Notes, Section 7.1(a) of the Base Indenture shall be deemed to be amended to read as follows: “If an Event of Default occurs and is not cured or waived, the Trustee shall, in the exercise of its rights and powers vested in it by the Indenture, use the degree of care of a prudent person in similar circumstances in the conduct of such person’s own affairs.”

(B)    For purposes of the Notes, Section 7.1(b)(i) of the Base Indenture shall be deemed to be amended to read as follows: “The duties of the Trustee shall be determined solely by the express provisions of the Indenture, and the Trustee need perform only those duties that are specifically set forth in the Indenture, and no implied covenants or obligations shall be read into the Indenture against the Trustee.”

(C)    For purposes of the Notes, Section 7.1(e) of the Base Indenture shall be deemed to be amended to read as follows: “The Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any Holder of Notes, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.”

7.02    NOTICE OF DEFAULTS.

This Section 7.02 shall apply to the Notes in lieu of Section 7.5 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 7.02 for purposes of the Notes.

If a Default or Event of Default occurs and is continuing, Trustee shall mail to each Holder of the Notes notice of such Default or Event of Default within ninety (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 in the payment of principal of or interest on any Note, the Trustee may withhold notice if and so long as a committee of its trust officers determines that withholding notice is not opposed to the interest of the Holders of the Notes.

7.03    AMENDMENTS TO THE BASE INDENTURE.

Notwithstanding anything to the contrary in the Base Indenture, for purposes of the Notes:

(A)    the second (2nd) paragraph of Section 7.7 of the Base Indenture is deemed to be amended by (x) replacing the phrase “performance of its duties” with the phrase “performance of its powers and duties”; and (y) deleting the clause “, unless and to the extent that the Company is materially prejudiced thereby”;

(B)    the fourth (4th) paragraph of Section 7.7 of the Base Indenture is deemed to be amended by deleting the phrase “, except that held in trust to pay principal of and interest on particular Securities of that Series”;

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(C)    the reference in the fifth (5th) paragraph of Section 7.7 of the Base Indenture to Section 6.1(f) or (g) of the Base Indenture shall be deemed instead to be references to Sections 6.01(vii) or 6.01(viii) hereof;

(D)    the following sentence shall be added at the end of Section 7.7 of the Base Indenture: “Notwithstanding anything herein to the contrary, a Default by the Issuer or any Guarantor under this Section 7.7 may be waived only by the Trustee.”; and

(E)    the number 60 in the fourth (4th) paragraph of Section 7.8 of the Base Indenture shall be deemed to be replaced with the number 30;

(F)    Section 7.8 of the Base Indenture shall be deemed to be amended by adding the following sentence immediately after the second sentence of the second paragraph thereof: “If the Trustee is no longer eligible under Section 7.10 or in the circumstances described in TIA §310(b), any Holder that satisfies the requirements of TIA §310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.”;

(G)    Section 7.8 of the Base Indenture shall be deemed to be amended by replacing the first sentence of the third paragraph thereof with the following sentence: “If the Trustee has been removed by the Holders, Holders of a majority in principal amount of the Notes may appoint a successor Trustee with the consent of the Issuer. Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.”; and

(H)     Section 9.7 of the Base Indenture shall be deemed to be amended by striking the clause “(subject to Section 7.1)”.

VIII.    DEFEASANCE; SATISFACTION AND DISCHARGE

This Article VIII shall apply to the Notes in lieu of Article VIII of the Base Indenture, which shall be deemed to be replaced in its entirety by this Article VIII for purposes of the Notes. Except as specifically provided in this Article VIII, none of the Issuer’s obligations under the Indenture will be discharged.

8.01    DISCHARGE OF OBLIGATIONS OF THE ISSUER AND THE GUARANTORS.

(A)    Subject to Section 8.01(B), the Issuer’s obligations under the Notes and with respect to the Notes under the Indenture, and each Guarantor’s obligations under its Guaranty, will terminate if:

(i)    all Notes previously authenticated and delivered (other than (i) destroyed, lost or stolen Notes that have been replaced; (ii) Notes that are paid; or (iii) Notes for whose payment money or U.S. Government Obligations have been held in trust and then repaid to the Issuer pursuant to Section 8.05) have been delivered to the Trustee for cancellation and the Issuer has paid all sums payable by it under the Indenture; or

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(ii)    (a) the Notes mature within sixty (60) days, or all of them are to be called for redemption within sixty (60) days under arrangements satisfactory to the Trustee for giving the notice of redemption;

(b)    the Issuer irrevocably deposits in trust with the Trustee, as trust funds solely for the benefit of the Holders, money or U.S. Government Obligations or a combination thereof sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certificate (the “Accountant’s Certificate”) delivered to the Trustee, without consideration of any reinvestment, to pay principal of and interest on the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it under the Indenture;

(c)    no Default has occurred and is continuing on the date of such deposit;

(d)    such deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound, and

(e)    the Issuer delivers to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in the Indenture relating to the satisfaction and discharge of the Indenture with respect to the Notes have been complied with.

(B)    After satisfying the conditions in Section 8.01(A)(i), only the Issuer’s obligations under Section 7.7 of the Base Indenture will survive. After satisfying the conditions in Section 8.01(A)(ii), only the Issuer’s obligations in Article II of the Base Indenture, Article II hereof, Sections 2.4, 4.1, 7.7 and 7.8 of the Base Indenture and Sections 2.03, 8.05 and 8.06 hereof will survive. In either case, the Trustee, upon request of the Issuer and receipt by the Trustee of the Accountant’s Certificate, Officer’s Certificate and Opinion of Counsel referred to above, shall acknowledge in writing the discharge of the Issuer’s obligations with respect to the Notes under the Notes and the Indenture other than such surviving obligations.

8.02    LEGAL DEFEASANCE.

(A)    After the one hundred and twenty third (123rd) day following the deposit referred to in clause (i) below, each of the Issuer and the Guarantors will be deemed to have paid and will be discharged from its obligations with respect to the Notes or the Guaranties under the Notes, the Guaranties and the Indenture, other than its obligations in Article II of the Base Indenture, Article II hereof, Sections 2.4, 2.7, 2.8, 4.1, 7.7 and 7.8 of the Base Indenture and Sections 2.03, 8.05 and 8.06 hereof, if:

(i)    the Issuer has irrevocably deposited in trust with the Trustee, as trust funds solely for the benefit of the Holders, money or U.S. Government Obligations or a combination thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in an Accountant’s Certificate delivered to the Trustee, without consideration of any reinvestment, to pay principal of and interest

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on the Notes to maturity or redemption, as the case may be, provided that any redemption before maturity has been irrevocably provided for under arrangements reasonably satisfactory to the Trustee;

(ii)    no Default has occurred and is continuing on the date of such deposit or on the one hundred and twenty third (123rd) day following such deposit;

(iii)    such deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound;

(iv)    the Issuer has delivered to the Trustee:

(a)    an Opinion of Counsel to the effect that the beneficial owners of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, which Opinion of Counsel must be based on a ruling of the Internal Revenue Service or other change in applicable federal income tax law; and

(b)    an Opinion of Counsel to the effect that (i) the creation of the defeasance trust does not violate the Investment Company Act of 1940; (ii) the Holders have a valid first priority security interest in the trust funds (subject to customary exceptions); and (iii) after the passage of one hundred and twenty three (123) days after such deposit, the trust funds will not be subject to the effect of Section 547 of the U.S. Bankruptcy Code (or any successor thereto); and

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

(B)    Prior to the passage of one hundred and twenty three (123) days after the date of the deposit referred to above, none of the Issuer’s obligations under the Indenture will be discharged pursuant to this Section 8.02. Thereafter, the Trustee, upon request of the Issuer and receipt by the Trustee of the Accountant’s Certificate, Officer’s Certificate and Opinion of Counsel referred to above, shall acknowledge in writing, at the Issuer’s expense, the discharge of the obligations of the Issuer and the Guarantors with respect to the Notes or the Guaranties under the Notes, the Guaranties and the Indenture, except for the surviving obligations specified above.

(C)    For the avoidance of doubt, if the Issuer exercises its rights under this Section 8.02, payment of the Notes may not be accelerated because of an Event of Default with respect thereto.

(D)    The Issuer may exercise the its rights under this Section 8.02 notwithstanding the Issuer’s prior exercise of the its rights under Section 8.01.

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8.03    COVENANT DEFEASANCE.

After the one hundred and twenty third (123rd) day following the deposit referred to in clause (i) of Section 8.02(A), the Issuer’s obligations under the Indenture and the Notes and with respect to the Notes under Sections 4.01 through 4.12 and Sections 4.14, 4.15 and 5.01(C) and each Guarantor’s obligations under its Guaranty, will terminate, and the Events of Default set forth in Sections 6.01(iv), 6.01(v), 6.01(vi), 6.01(vii) (with respect only to Significant Subsidiaries), 6.01(viii) (with respect only to Significant Subsidiaries), 6.01(ix) and 6.01(x) will no longer constitute Events of Default, if the Issuer has complied with clauses (i), (ii), (iii), (iv) and (v) of Section 8.02(A) (provided, however, that, in lieu of the Opinion of Counsel required by sub-clause (a) of such clause (iv), the Issuer may deliver a ruling received from the Internal Revenue Service to the effect that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of the deposit or 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 otherwise have been the case if such deposit or defeasance had not occurred).

8.04    APPLICATION OF TRUST MONEY.

Subject to Section 8.05, the Trustee will hold in trust the money or U.S. Government Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03 and any applicable abandoned property laws, and apply the deposited money and the proceeds from deposited U.S. Government Obligations to the payment of principal of and interest on the Notes in accordance with the Notes and the Indenture. Such money and U.S. Government Obligations need not be segregated from other funds except to the extent required by law.

8.05    REPAYMENT TO ISSUER.

Subject to Section 7.7 of the Base Indenture and Sections 8.01, 8.02 or 8.03, the Trustee will promptly pay to the Issuer upon written request any money held by the Trustee that, 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, is in excess of the amount thereof that would then have been required to be deposited for the purpose for which such monies were deposited, and thereupon the Trustee shall be relieved from all liability with respect to such money. Subject to applicable abandoned property law, the Trustee will pay to the Issuer upon written request any money held for payment with respect to the Notes that remains unclaimed for two (2) years, provided that before making such payment the Trustee may at the expense of the Issuer publish once in a newspaper of general circulation in New York City, or send to each Holder entitled to such money, notice that the money remains unclaimed and that after a date specified in the notice (at least thirty (30) days after the date of the publication or notice) any remaining unclaimed balance of money will be repaid to the Issuer. After payment to the Issuer, Holders entitled to such money must look solely to the Issuer for payment, unless applicable law designates another Person, and all liability of the Trustee with respect to such money will cease.

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8.06    REINSTATEMENT.

If and for so long as the Trustee is unable to apply any money or U.S. Government Obligations held in trust pursuant to Section 8.01, 8.02 or 8.03 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 Issuer’s obligations under the Indenture and the Notes will be reinstated as though no such deposit in trust had been made. If the Issuer makes any payment of principal of or interest on any Notes because of the reinstatement of its obligations, it will be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held in trust.

8.07    INDEMNIFICATION OF TRUSTEE.

The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to this Article VIII or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.

IX.    AMENDMENTS

An amendment to the Indenture, the Notes or the Guaranties that amends, supplements or modifies the terms of this Supplemental Indenture, the Notes or the Guaranties must satisfy the requirements of this Article IX in lieu of the requirements of Article IX of the Base Indenture (other than Sections 9.4 through 9.7, inclusive, of the Base Indenture, which shall apply to the Notes). For the avoidance of doubt, the Base Indenture or any Security (other than the Notes) of a Series established pursuant to the Base Indenture may be amended as provided in Article IX of the Base Indenture. Sections 9.4 through 9.7, inclusive, of the Base Indenture shall apply to the Notes mutatis mutandis.

9.01    WITHOUT CONSENT OF HOLDERS.

This Section 9.01 shall apply to the Notes in lieu of Section 9.1 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 9.01 for purposes of the Notes.

Without the consent of any Holder of the Notes, the Issuer, the Guarantors and the Trustee may amend the Indenture to:

(i)    cure any ambiguity, omission, defect or inconsistency;

(ii)    provide for the assumption by a successor corporation of the obligations of the Issuer or any Guarantor under the Indenture;

(iii)    provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code);

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(iv)    add guarantees or co-issuers with respect to the Notes, including any Subsidiary Guaranties, or to secure the Notes;

(v)    add to the covenants of the Issuer or any Guarantor for the benefit of the Holders of the Notes or to surrender any right or power conferred upon the Issuer or any Guarantor;

(vi)    make any change that does not materially adversely affect the rights of any Holder of the Notes;

(vii)    comply with any requirement of the SEC in connection with any required qualification of the Indenture under the TIA;

(viii)    conform the text of the Indenture, the Guaranties or the Notes to any provision set forth in the section of the Prospectus Supplement under the caption “Description of the Notes”;

(ix)    amend the provisions of the Indenture relating to the transfer and legending of Notes; provided, however, that (i) compliance with the Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Notes, except as required by law; or

(x)    provide for any transfer restrictions that apply to any Notes issued under the Indenture (other than the Notes issued on the Issue Date, and any Notes issued in exchange therefor or in substitution thereof) that, at the time of their original issuance, constitute “restricted securities” within the meaning of Rule 144 under the Securities Act or that are originally issued in reliance upon Regulation S under the Securities Act.

9.02    WITH CONSENT OF HOLDERS.

This Section 9.02 shall apply to the Notes in lieu of Sections 9.2 and 9.3 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 9.02 for purposes of the Notes.

(A)    Except as provided in Sections 6.2 and 6.8 of the Base Indenture or in Section 6.02 or 9.02(B) hereof, the Indenture may be amended with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or exchange for the Notes) and any past default or compliance with any provisions may also be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding.

(B)    Without the consent of each Holder of an outstanding Note affected thereby, an amendment of or waiver to the Indenture may not:

(i)    reduce the amount of Notes whose Holders must consent to an amendment to the Indenture;

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(ii)    reduce the rate of or extend the time for payment of interest on any Note;

(iii)    reduce the principal of or extend the Stated Maturity of any Note;

(iv)    reduce the amount payable upon the redemption of any Note or change the time at which any Note may be redeemed as set forth in Article III of the Base Indenture and Article III hereof.

(v)    make any Note payable in money other than that stated in the Notes;

(vi)    impair the right of any Holder of the Notes to receive payment of principal of and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;

(vii)    make any change to any provision in this Article IX that requires each Holder’s consent or to the waiver provisions of the Indenture;

(viii)    make any change in the ranking or priority of any Note or Guaranty that would adversely affect the Noteholders; or

(ix)    voluntarily release a Subsidiary Guarantor other than in accordance with the Indenture.

9.03    CONSENTS AS TO SUBSTANCE OF AMENDMENTS.

The consent of the Holders of the Notes is not necessary under the Indenture to approve the particular form of any proposed amendment, supplement or waiver. It is sufficient if such consent approves the substance of the proposed amendment, supplement or waiver.

9.04    NOTICE OF AMENDMENTS; EFFECTIVENESS.

An amendment, supplement or waiver under Section 9.02 will become effective on receipt by the Trustee of written consents from the Holders of the requisite percentage in principal amount of the outstanding Notes. After an amendment, supplement or waiver pursuant to Section 9.01 or 9.02 becomes effective, the Issuer shall deliver electronically, with respect to any Notes that are held in the form of one or more Global Securities, or mail to Holders of the Notes, a notice briefly describing such amendment, supplement or waiver. However, the failure to give such notice to all Holders of the Notes, or any defect therein, will not impair or affect the validity of the amendment, supplement or waiver.

9.05    EFFECT OF CONSENT.

This Section 9.05 shall apply to the Notes in lieu of Section 9.5 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 9.05 for purposes of the Notes.

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(A)    After an amendment, supplement or waiver pursuant to this Article IX becomes effective, it will bind every Holder (and every subsequent Holder of a Note) unless it is of the type requiring the consent of each Holder affected. If such amendment, supplement or waiver is of the type requiring the consent of each Holder affected, then such amendment, supplement or waiver will bind each Holder that has consented to it and every subsequent Holder of a Note that evidences the same debt as the Note of the consenting Holder.

(B)    If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder to deliver it to the Trustee so that the Trustee may place an appropriate notation of the changed terms on the Note and return it to the Holder, or exchange it for a new Note that reflects the changed terms. The Trustee may also place an appropriate notation on any Note thereafter authenticated. However, the effectiveness of the amendment, supplement or waiver is not affected by any failure to annotate or exchange Notes in this fashion.

9.06    CONSENT FEES.

Neither the Issuer nor any Affiliate of the Issuer may, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the Notes, unless such consideration is offered to all Holders and is paid to all Holders that so consent, waive or agree to amend in the timeframe set forth in solicitation documents relating to such consent, waiver or agreement.

9.07    TRUSTEE ENTITLED TO OFFICER’S CERTIFICATE AND OPINION OF COUNSEL.

In connection with any amendment, supplement or waiver pursuant to this Article IX, the Trustee shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to such amendment, supplement or waiver have been satisfied, that such amendment, supplement or waiver is authorized or permitted by the Indenture, and, with respect to such Opinion of Counsel, that such amendment, supplement or waiver is the legal, valid and binding obligation of the parties thereto, enforceable against it in accordance with its terms.

X.    GUARANTIES

Article XII of the Base Indenture shall apply to the Notes, and the Notes shall be subject to Guarantees (as defined in the Base Indenture) by the Guarantors to the extent provided, and subject to the terms of, this Supplemental Indenture. For purposes of interpreting the Indenture as it relates to the Notes, the term “Guarantee,” as used in the Base Indenture, shall have the meaning ascribed to it in the Base Indenture (and, for the avoidance of doubt, the term “Guarantee,” as used herein, shall have the meaning ascribed to it herein).

10.01    THE GUARANTIES.

Subject to the provisions of this Article X, each Guarantor hereby irrevocably and unconditionally guarantees, jointly and severally, on an unsecured basis, the full and punctual payment (whether at Stated Maturity, upon redemption, purchase pursuant to an Fundamental Change Offer or acceleration, or otherwise) of the principal of, and interest on, and all other

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amounts payable under, each Note, and the full and punctual payment of all other amounts payable by the Issuer under the Indenture. Upon failure by the Issuer to pay punctually any such amount, each Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in the Indenture.

10.02    GUARANTY UNCONDITIONAL.

The obligations of each Guarantor hereunder are unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged or otherwise affected by:

(A)    any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Issuer under the Indenture or any Note, by operation of law or otherwise;

(B)    any modification or amendment of or supplement to the Indenture or any Note;

(C)    any change in the corporate existence, structure or ownership of the Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Issuer or its assets or any resulting release or discharge of any obligation of the Issuer contained in the Indenture or any Note;

(D)    the existence of any claim, set-off or other rights which the Guarantor may have at any time against the Issuer, the Trustee or any other Person, whether in connection with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;

(E)    any invalidity or unenforceability relating to or against the Issuer for any reason of the Indenture or any Note, or any provision of applicable law or regulation purporting to prohibit the payment by the Issuer of the principal of or interest on any Note or any other amount payable by the Issuer under the Indenture; or

(F)    any other act or omission to act or delay of any kind by the Issuer, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to such Guarantor’s obligations hereunder.

10.03    DISCHARGE; REINSTATEMENT.

Each Guarantor’s obligations hereunder will remain in full force and effect until the principal of, and interest on, the Notes and all other amounts payable by the Issuer under the Indenture have been paid in full. If at any time any payment of the principal of, or interest on, any Note or any other amount payable by the Issuer under the Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, each Guarantor’s obligations hereunder with respect to such payment will be reinstated as though such payment had been due but not made at such time.

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10.04    WAIVER BY THE GUARANTORS.

Each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Issuer or any other Person.

10.05    SUBROGATION AND CONTRIBUTION.

Upon making any payment with respect to any obligation of the Issuer under this Article X, the Guarantor making such payment will be subrogated to the rights of the payee against the Issuer with respect to such obligation, provided that the Guarantor may not enforce either any right of subrogation, or any right to receive payment in the nature of contribution, or otherwise, from any other Guarantor, with respect to such payment so long as any amount payable by the Issuer hereunder or under the Notes remains unpaid.

10.06    STAY OF ACCELERATION.

If acceleration of the time for payment of any amount payable by the Issuer under the Indenture or the Notes is stayed upon the insolvency, bankruptcy or reorganization of the Issuer, all such amounts otherwise subject to acceleration under the terms of the Indenture are nonetheless payable by the Guarantors hereunder forthwith on demand by the Trustee or the Holders.

10.07    LIMITATION ON AMOUNT OF GUARANTY.

Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, each Guarantor, and, by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guaranty of such Guarantor not constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the U.S. Bankruptcy Code or any comparable provision of state law. To effectuate such intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that, notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, the obligations of each Guarantor under its Guaranty shall be limited to the maximum amount that would not render such Guarantor’s obligations under such Guaranty subject to avoidance under applicable fraudulent conveyance provisions of the U.S. Bankruptcy Code or any comparable provision of state law.

10.08    EXECUTION AND DELIVERY OF GUARANTY.

The execution by each initial Guarantor of this Supplemental Indenture (or, with respect to any Guarantor other than an Initial Guarantor, a supplemental indenture to the Base Indenture substantially in the form of Exhibit C hereto) evidences the Guaranty of such Guarantor, whether or not the person who shall have signed the same as an officer of such Guarantor still holds that office at the time of authentication of any Note.

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10.09    RELEASE OF GUARANTY.

The Subsidiary Guaranty of a Subsidiary Guarantor shall be deemed to be automatically and unconditionally released and discharged, without the need of any action on the part of such Subsidiary Guarantor or the Trustee or otherwise:

(A)    upon the sale or other disposition (including by way of consolidation or merger) of such Subsidiary Guarantor (including, for the avoidance of doubt, any transaction pursuant to which such Subsidiary Guarantor ceases to be a Subsidiary of the Issuer);

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

(C)    upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary or a Non-Material Subsidiary pursuant to the terms of the Indenture;

(D)    upon a legal defeasance or satisfaction and discharge of the Notes, as provided in Article VIII;

(E)    pursuant to Article IX; or

(F)    pursuant to Section 4.16,

in the case of clause (A) or (B), other than to the Issuer or a Restricted Subsidiary and as permitted by the Indenture.

Upon delivery by the Issuer to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in order to evidence the release of the Guarantor from its obligations under its Guaranty.

Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, if the Issuer, due to an error made in good faith, causes any Person to execute this Supplemental Indenture or any other supplement to the Base Indenture, or any other instrument, purporting to cause such Person to guarantee the Notes and become a Subsidiary Guarantor and, at the time of such execution, either (x) such Person is not a domestic Subsidiary of the Issuer; or (y) such Person is neither a Rule 3-10-Eligible Subsidiary nor required to guarantee the Notes pursuant to the Indenture, then, notwithstanding such Supplemental Indenture or other supplement or instrument, the Subsidiary Guaranty of such Person shall automatically, and without the need for any action on the part of the Issuer, such Person or the Trustee or otherwise, be null and void, with the same force and effect as if such execution had never occurred. Without limiting the generality of the foregoing, the Issuer and such Person may nonetheless thereafter execute and deliver to the Trustee such instruments or other documents that shall memorialize the nullification of such Subsidiary Guaranty.

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XI.    MISCELLANEOUS

11.01    NOTICES.

For purposes of the Notes, the first (1st) sentence of the third (3rd) paragraph of Section 10.2 of the Base Indenture is deemed to be amended to read as follows: “Any notice or communication to a Holder shall be mailed by first-class mail to his address shown on the register kept by the Registrar or, in the case of a Global Security, delivered in accordance with the procedures of the Depositary.”

11.02    JUDGMENT CURRENCY.

For purposes of the Notes, Section 10.16 of the Base Indenture is deemed to be amended by replacing each reference therein to “the Trustee” with “a U.S. bank of national standing”.

11.03    TRUST INDENTURE ACT CONTROLS.

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

11.04    DUPLICATE ORIGINALS.

The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed .PDF counterpart via electronic mail shall be effective as delivery of a manually executed counterpart thereof.

11.05    GOVERNING LAW; SUBMISSION TO JURISDICTION.

THIS SUPPLEMENTAL INDENTURE, THE NOTES AND EACH GUARANTIES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE GUARANTIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE GUARANTIES.

11.06    NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.

This Supplemental Indenture and the Base Indenture may not be used to interpret another indenture, loan or debt agreement of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Supplemental Indenture or the Base Indenture.

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11.07    SUCCESSORS.

All agreements of the Issuer and the Guarantors in this Supplemental Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.

11.08    SEPARABILITY.

In case any provision in this Supplemental Indenture, the Base Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and a Holder shall have no claim therefor against any party hereto.

11.09    TABLE OF CONTENTS, HEADINGS, ETC.

The Table of Contents and headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture or the Base Indenture and shall in no way modify or restrict any of the terms or provisions of this Supplemental Indenture or the Base Indenture.

11.10    CALCULATIONS IN RESPECT OF THE NOTES.

The Issuer and its agents shall make all calculations under the Indenture and the Notes in good faith. In the absence of manifest error, such calculations shall be final and binding on all Holders. The Issuer shall provide a copy of such calculations to the Trustee as required hereunder, and, absent such manifest error, the Trustee shall be entitled to rely on the accuracy of any such calculation without independent verification.

11.11    NO PERSONAL LIABILITY.

No past, present or future director, officer, employee, incorporator, member or stockholder or control person of the Issuer or any Guarantor, as such, will have any liability for any obligations of the Issuer or any Guarantor under the Notes, any Guaranty or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]

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

KENNEDY-WILSON, INC.     AS ISSUER
By:	/s/ Justin Enbody
	Name:	Justin Enbody
	Title:	Chief Financial Officer

[Signature Page to Supplemental Indenture]

KENNEDY-WILSON HOLDINGS, INC.     As Parent
By:	/s/ Justin Enbody
	Name:	Justin Enbody
	Title:	Chief Financial Officer
K-W PROPERTIES
KW BASGF II MANAGER, LLC
KWF INVESTORS I, LLC
KENNEDY WILSON OVERSEAS INVESTMENTS, INC.
SG KW VENTURE I MANAGER LLC
KW SUMMER HOUSE MANAGER, LLC
KW MONTCLAIR, LLC
KW SERENADE MANAGER, LLC
K-W SANTIAGO INC.
KW REDMOND MANAGER, LLC
DILLINGHAM RANCH AINA LLC 68-540 FARRINGTON, LLC
KW DILLINGHAM AINA LLC
KENNEDY WILSON FUND MANAGEMENT GROUP, LLC
KENNEDY-WILSON INTERNATIONAL
KENNEDY-WILSON TECH LTD.
KWP FINANCIAL I
KENNEDY WILSON AUCTION GROUP INC.
KWF MANAGER IV, LLC
KW IRELAND, LLC
KENNEDY WILSON REAL ESTATE SALES & MARKETING
KWF INVESTORS IV, LLC
SANTA MARIA LAND PARTNERS MANAGER, LLC
KW INVESTMENT ADVISER, LLC
KENNEDY-WILSON CAPITAL
KWF INVESTORS VII, LLC
KWF MANAGER VII, LLC
KW RESIDENTIAL CAPITAL, LLC
KW BOISE PLAZA, LLC
KW EU LOAN PARTNERS II, LLC
KW HARRINGTON LLC
KW 5200 LANKERSHIM MANAGER, LLC
KWF MANAGER X, LLC
KWF MANAGER XI, LLC
KWF MANAGER XII, LLC
KW REAL ESTATE VENTURE XIII, LLC
KWF MANAGER XIII, LLC

[Signature Page to Supplemental Indenture]

KW EU LOAN PARTNERS III, LLC

KW EU INVESTORS I, LLC

KW RICHFIELD PLAZA, LLC

KW CURRIER SQUARE SHOPPING CENTER, LLC

KW CREEKVIEW SHOPPING CENTER, LLC

KW SECURITIES, LLC

KW VICTORY LAND LOAN, LLC

KW VICTORY PLAZA LOAN, LLC

COUNTRY RIDGE IX, LLC

KW EU INVESTORS VIII, LLC

KW PARK SANTA FE, LLC

KW CYPRESS, LLC

KW TACOMA CONDOS, LLC

KW DESERT RAMROD SPONSOR, LLC

KW 9350 CIVIC CENTER DRIVE, LLC

KW TAYLOR YARD 55, LLC

KW RED CLIFF SHOPPING CENTER, LLC

KW HOLIDAY VILLAGE SHOPPING CENTER, LLC

KW HILLTOP MANAGER II, LLC

KW BOZEMAN INVESTORS, LLC

KW ONE BAXTER WAY GP, LLC

KW RIVERDALE AND 36, LLC

KW 400 CALIFORNIA MEMBER, LLC

KW CIG MANAGEMENT SERVICES, LLC

KW TERRA WEST SPONSOR, LLC

KW HANOVER QUAY, LLC

KENNEDY WILSON PROPERTY EQUITY VI, LLC

KENNEDY WILSON PROPERTY SERVICES VI, LLC

KW LV 3 SPONSOR, LLC

KW NB LLC

KW CAMARILLO LAND, LLC

KW 2013EE LLC

KW EU PRS INVESTOR, LLC

KW ROSEWOOD PREMIERE, LLC

KW RIVER POINTE PREMIER, LLC

KW KAWANA SPRINGS

KW QUEBEC PARTICIPANT, LLC

KW QUEBEC ASSET MANAGER, LLC

KW REAL ESTATE II EQUITY, LLC

KW REAL ESTATE II CARRY, LLC

KW REAL ESTATE II GP, LLC

KW SUNSET CP PARTICIPANT, LLC

KW SUNSET CP ASSET MANAGER, LLC

KW CP WEST HILLS PARTICIPANT, LLC

KW CP WEST HILLS ASSET MANAGER, LLC

KW LINDER ROAD, LLC

[Signature Page to Supplemental Indenture]

KW SEATTLE OFFICE PORTFOLIO GP, LLC
KW CDO INVESTOR, LLC
KW HAMILTON LANDING—LAND, LLC
KW RANCHO MIRAGE LOAN, LLC
KW SUNSET NORTH LLC
KW HEIGHTS INVESTOR, LLC
KW BURLINGAME POINT LOAN, LLC
KW PACIFICA, LLC
KW RIVERWALK, LLC
KW ABQ, LLC
KW F5 TOWER, LLC
KW MANHATTAN BEACH STUDIO LOAN, LLC
KW GOLDEN STATE TOWER LOAN, LLC
KW ROCKVUE, LLC
KW SOUTH MAIN STATION
KWF MANAGER, LLC
KW RESIDENCES AT HARVARD, LLC
KW MOFFETT PLACE, LLC
KW THE PRESS, LLC
KW ORCHARD-TRIMBLE CAMPUS, LLC
KW 50 WEST, LLC
KW KOHANAIKI, LLC
KW EU CAPITAL 2, LLC
KW EU CAPITAL 3, LLC
KW 134TH STREET LOFTS, LLC
KW ASHTON PARC VILLAGIO, LLC
KW SB MANAGER, LLC
KW THE CADANCE, LLC
KW WATERLINE APARTMENTS, LLC
KW 360 SPEAR, LLC
KW ADVANTA OFFICE COMMONS, LLC
KW SOUTH BAY GALLERIA, LLC
KW PINE 43, LLC
KW EISLEY SPONSOR, LLC
KW LPC INVESTOR, LLC
KW OXFORD NORTH LLC
KW ALILA NAPA VALLEY, LLC
As Subsidiary Guarantors
By:	/s/ Justin Enbody
	Name:	Justin Enbody
	Title:	Chief Financial Officer

[Signature Page to Underwriting Agreement]

WILMINGTON TRUST, NATIONAL ASSOCIATION   As Trustee
By:	/s/ Hallie E. Field
	Name:	Hallie E. Field
	Title:	Vice President

[Signature Page to Supplemental Indenture]

EXHIBIT A

[Face of Note]

KENNEDY-WILSON, INC.

Certificate No.                     

[INSERT GLOBAL SECURITY LEGEND AS REQUIRED]

4.75% Senior Note due 2030

CUSIP No.                    

Kennedy-Wilson, Inc., a Delaware corporation, (the “Issuer,” which term includes any successor thereto under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of [        ] dollars ($[        ]) (or such lesser or greater amount duly stated in the attached Schedule of Exchanges of Interests in this Global Security) on February 1, 2030 and to pay interest thereon, as provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or duly provided for.

Interest Rate:	4.75% per annum.
Interest Payment Dates:	March 1 and September 1 of each year, with the first payment to be made on [                    ]. In addition, February 1, 2030 will be an Interest Payment Date.
Regular Record Dates:	February 15 and August 15; provided, however, that the Regular Record Date for the Interest Payment Date occurring on February 1, 2030 will be January 15, 2030.

The provisions on the back of this certificate are incorporated as if set forth on the face hereof.

[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]

A-1

IN WITNESS WHEREOF, Kennedy-Wilson, Inc. has caused this instrument to be duly signed.

	KENNEDY-WILSON, INC.
Dated:	By:
		Name:
		Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated pursuant to the within-mentioned Indenture.
[LEGAL NAME OF TRUSTEE], as Trustee
By:
	Authorized Signatory
Dated:

[REVERSE OF SECURITY]

KENNEDY-WILSON, INC.

4.75% Senior Note due 2030

1.    Indenture. This Note is issued under that certain Indenture (as amended, supplemented or otherwise modified from time to time, the “Base Indenture”), dated as of March 25, 2014, between the Issuer and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by that certain Supplemental Indenture No. 2030-1 (as amended, supplemented or otherwise modified from time to time, the “Supplemental Indenture,” and, together with the Base Indenture, the “Indenture”), dated as of August 23, 2021, among the Issuer, Kennedy-Wilson Holdings, Inc. (the “Parent”), the Subsidiary Guarantors named therein and the Trustee. Capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Indenture. The terms of this Note include those stated in the Indenture and those made part of the Indenture by reference to the TIA. To the extent permitted by applicable law, in the event of any conflict or inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control to the extent of such conflict or inconsistency.

2.    Interest. Kennedy-Wilson, Inc. (the “Issuer”) promises to pay interest on the principal amount of this Note at the rate per annum set forth on the face of this Note. The Issuer will pay interest, payable semi-annually in arrears, on each Interest Payment Date. Such interest shall be payable to the Holder of record of this Note at the close of business on the Regular Record Date immediately preceding the date the installment of interest is due. Interest on this Note will accrue on the principal amount from, and including, the most recent date to which interest has been paid or provided for or, if no interest has been paid, from, and including, [                    ], in each case to, but excluding, the next Interest Payment Date. Interest will be computed on the basis of a three hundred and sixty (360) day year comprised of twelve (12) thirty (30) day months.

The Issuer will pay interest on overdue principal, and overdue installments of interest, at the rate per annum that is two percent (2.00%) in excess of the rate per annum set forth on the face of this Note. Interest not paid when due and any interest on principal or interest not paid when due will be paid to the Persons that are Holders of record on a special record date, which will be the fifteenth (15th) day preceding the date fixed by the Issuer for the payment of such interest, whether or not such day is a Business Day. At least fifteen (15) days before a special record date, the Issuer will deliver to the Trustee and mail to each Holder of Notes a notice that states the special record date, the payment date and the amount of interest to be paid.

3.    Maturity. The Notes will mature on February 1, 2030.

4.    Redemption and Fundamental Change Offer. This Note is subject to optional redemption, and may be the subject of an Fundamental Change Offer, as set forth in the Indenture. There is no sinking fund or mandatory redemption applicable to this Note.

5.    Discharge prior to Redemption or Maturity. Under certain circumstances in accordance with the Indenture, the Issuer and the Guarantors may be discharged from the Indenture, the Notes and the Guaranties or may be discharged from certain of their respective obligations thereunder.

6.    Form; Denomination. This Notes is in registered form without coupons and shall be issued only in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof.

7.    Events of Default. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes may declare all the Notes to be due and payable, except for certain Events of Default that automatically result in all the Notes to be due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of remedies.

8.    Amendments and Waiver. Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of a majority in principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Indenture and the Notes may be amended or supplemented to, among other things, cure any ambiguity, omission, defect or inconsistency.

9.    No Personal Liability. No past, present or future director, officer, employee, incorporator, member or stockholder or control person of the Issuer or any Guarantor, as such, will have any liability for any obligations of the Issuer or any Guarantor under the Notes, any Guaranty or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

10.    Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent in accordance with the Indenture.

11.    Governing Law. THIS NOTE AND EACH GUARANTY OF THIS NOTE, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS NOTE OR ANY SUCH GUARANTY, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).

12.    Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).

THE ISSUER WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE BASE INDENTURE OR THE SUPPLEMENTAL INDENTURE. REQUESTS MAY BE MADE TO:

Kennedy-Wilson, Inc.

151 S El Camino Drive

Beverly Hills, California 90212

A-5

[FORM OF ASSIGNMENT]

I or we assign to

PLEASE INSERT SOCIAL SECURITY OR

OTHER IDENTIFYING NUMBER

(please print or type name and address)

the within Note and all rights thereunder, and hereby irrevocably constitute and appoint

Attorney to transfer the Note on the books of the Issuer with full power of substitution in the premises.

Dated:
	NOTICE: The signature on this assignment must correspond with the name as it appears upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever and be guaranteed by a guarantor institution participating in the Notes Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.
Signature Guarantee:

A-6

PURCHASE NOTICE

Certificate No. of Note:                     

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.01 of the Supplemental Indenture, check the box:  ☐

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.05(A)(iii)(c) of the Supplemental Indenture, check the box:  ☐

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.01 or 4.05(A)(iii)(c) of the Supplemental Indenture, as applicable, state the principal amount to be so purchased by the Issuer:

$                                                                          

(must be a minimum of $2,000 or any integral multiple of $1,000 in excess thereof)

Date:	Signature(s):
	(Sign exactly as your name(s) appear(s) on the other side of this Note)
Signature(s) guaranteed by:	(All signatures must be guaranteed by a guarantor institution participating in the Notes Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

A-7

SCHEDULE A

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY

The following exchanges of a part of this Global Note for an interest in another Global Note or for Notes in certificated form, have been made:

Date of Exchange Amount of decrease in Principal amount of this Global Note Amount of Increase in
Principal amount of this Global Note Principal amount of this Global Note following such decrease or increase Signature or
authorized signatory of Trustee or Note Custodian

A-8

EXHIBIT B

FORM OF LEGEND FOR GLOBAL SECURITY

Any Global Note authenticated and delivered 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 A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.

B-1

EXHIBIT C

FORM OF SUPPLEMENTAL INDENTURE FOR FUTURE GUARANTORS

KENNEDY-WILSON, INC.,

as Issuer

THE SUBSIDIARY GUARANTOR[S] PART[Y][IES] HERETO

and

[legal name of Trustee]

as Trustee

SUPPLEMENTAL INDENTURE NO. [                    ]

Dated as of [                    ]

to

INDENTURE

Dated as of March 25, 2014

4.75% SENIOR NOTES DUE 2030

SUPPLEMENTAL INDENTURE NO. [                    ] (the “Supplemental Indenture”), dated as of [                    ], among Kennedy-Wilson, Inc., as issuer (the “Issuer”), the Subsidiary Guarantor[s] (as defined herein) party hereto (the “New Guarantor[s]”) and [legal name of trustee], as trustee (the “Trustee”).

WITNESSETH THAT:

WHEREAS, the Issuer and the Trustee have executed and delivered a base indenture, dated as of March 25, 2014 (as amended, supplemented or otherwise modified from time to time with respect to the Notes (as defined below), the “Base Indenture,” and, together with the First Supplemental Indenture (as defined below), the “Indenture”) to provide for the future issuance of the Issuer’s debt securities to be issued from time to time in one or more series; and

WHEREAS, the Issuer, the Guarantors party thereto and the Trustee entered into that certain Supplemental Indenture No. 2030-1, dated as of August 23, 2021 (the “First Supplemental Indenture”), relating to the Issuer’s 4.75% Senior Notes due 2030 (the “Notes”);

C-1

WHEREAS, as a condition to the Trustee entering into the Indenture and the purchase of the Notes by the Holders, the Issuer agreed pursuant to the Indenture to cause certain of its domestic Restricted Subsidiaries to provide Guaranties after the Issue Date (as defined herein); and

WHEREAS, the Issuer desires, and this Supplemental Indenture is being executed and delivered pursuant to Sections 4.09 and 9.01(iv) of the First Supplemental Indenture, to cause [each of] the New Guarantor[s] to provide a Guaranty and become a Subsidiary Guarantor;

NOW, THEREFORE:

Each party hereto agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined herein) of the Notes.

Section 1.    Capitalized terms used herein without definition shall have the respective definitions ascribed to them in the Indenture.

Section 2.    [Each][The] New Guarantor[s], by its execution of this Supplemental Indenture, agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including, but not limited to, Article X of the First Supplemental Indenture.

Section 3.    Notwithstanding anything herein to the contrary, this Supplemental Indenture shall be subject, without limitation, to the last paragraph of Section 10.09 of the First Supplemental Indenture with the same force an effect as if such paragraph were reproduced herein.

Section 4.    THIS SUPPLEMENTAL INDENTURE AND [EACH][THE] GUARANTY OF THE NEW GUARANTOR[S], INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE OR SUCH GUARANT[Y][IES], SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).

Section 5.    This Supplemental Indenture may be signed in various counterparts which together will constitute one and the same instrument.

Section 6.    No past, present or future director, officer, employee, incorporator, member or stockholder or control person of the Issuer or any Guarantor, as such, will have any liability for any obligations of the Issuer or any Guarantor under the Notes, any Guaranty, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder of the Notes by accepting a Note or any Guaranty waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes or any Guaranty.

C-2

Section 7.    This Supplemental Indenture is an amendment supplemental to the Indenture, and the Indenture and all subsequent supplements thereto, including this Supplemental Indenture, shall be read together.

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

KENNEDY-WILSON, INC.
By:
	Name:
	Title:
[LEGAL NAME OF TRUSTEE]
By:
	Name:
	Title:
[LEGAL NAME OF NEW GUARANTOR[S]]
By:
	Name:
	Title:

C-3

EX-5.1

Exhibit 5.1

	355 South Grand Avenue, Suite 100
	Los Angeles, California 90071-1560
	Tel: +1.213.485.1234 Fax: +1.213.891.8763
	www.lw.com
	FIRM / AFFILIATE OFFICES
	Beijing	Moscow
	Boston	Munich
	Brussels	New York
	Century City	Orange County
	Chicago	Paris
	Dubai	Riyadh
August 23, 2021	Düsseldorf	San Diego
	Frankfurt	San Francisco
	Hamburg	Seoul
	Hong Kong	Shanghai
	Houston	Silicon Valley
	London	Singapore
	Los Angeles	Tokyo
	Madrid	Washington, D.C.
	Milan

Kennedy-Wilson Holdings, Inc.

and

Kennedy-Wilson, Inc.

151 S. El Camino Drive

Beverly Hills, CA 90212

Re: 4.75% Senior Notes due 2030

Ladies and Gentlemen:

We have acted as special counsel to Kennedy-Wilson, Inc., a Delaware corporation (the “Company”), in connection with the offer and sale to the underwriters (the “Underwriters”) named in Schedule A to the Underwriting Agreement (the “Underwriting Agreement”), dated as of August 9, 2021, among the representative of the Underwriters, the Company and the guarantors party thereto, of $600,000,000 aggregate principal amount of the 4.75% Senior Notes due 2030 (the “Notes”), pursuant to the Underwriting Agreement. The Notes are being issued pursuant to an indenture (the “Base Indenture”), dated as of March 25, 2014, between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by Supplemental Indenture No 2030-1 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), dated as of August 23, 2021, among the Company, the guarantors party thereto and the Trustee. The Notes will be guaranteed (the “Guarantees,” and, together with the Notes, the “Securities”) by the entities listed on Annex A hereto (collectively, the “Guarantors”).

The offer and sale of the Securities is being made pursuant to a registration statement on Form S-3 (File No. 333-235473) under the Securities Act of 1933, as amended (the “Act”) filed with the Securities and Exchange Commission (the “Commission”) on December 12, 2019 (such registration statement, as amended, the “Registration Statement”), and a prospectus supplement (the “Prospectus Supplement”) filed by the Company with the Commission on August 10, 2021.

This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act. No opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus Supplement, other than as expressly stated herein with respect to the issue of the Securities.

August 23, 2021

Page 2

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, the Guarantors 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 the general corporation law of the state of Delaware, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction (or, in the case of Delaware, any other laws) or as to any matters of municipal law or the laws of any local agencies within any state. Various matters concerning the laws of the States of California, and Delaware are addressed in the letter of Kulik Gottesman Siegel & Ware 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, the certificate representing the Notes has been duly executed and delivered by the Company, and, when duly authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the Underwriting Agreement, (a) the Notes will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and (b) the Guarantees will be legally valid and binding obligations of the respective Guarantors, enforceable against the respective Guarantors 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) 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), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought; (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; and (iv) 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, including those contained in Section 4.4 of the Base Indenture, (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 Security, 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,

August 23, 2021

Page 3

(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, (q) provisions purporting to make a guarantor primarily liable rather than as a surety and provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation and (r) the severability, if invalid, of provisions to the foregoing effect. We are not passing upon the creation, validity, attachment, perfection, or priority of any lien or security interest.

With your consent, we have assumed that (i) each of the Base Indenture and the Supplemental Indenture has been duly authorized, executed and delivered by the Trustee, (ii) each of the Base Indenture and the Supplemental Indenture constitutes legally valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with its terms, and (iii) the status of each of the Base Indenture and the Supplemental Indenture as legally valid and binding obligations of the parties will not be affected by any (a) breaches of, or defaults under, agreements or instruments, (b) violations of statutes, rules regulations or court or governmental orders, or (c) 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 of this opinion as an exhibit to a Current Report on Form 8-K that will be incorporated by reference into the Registration Statement. 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.

Very truly yours,

/s/ Latham & Watkins LLP

Annex A

1. Kennedy-Wilson Holdings, Inc., a Delaware corporation

2. K-W Properties, a California corporation

3. KW BASGF II Manager, LLC, a Delaware limited liability company

4. KWF Investors I, LLC, a Delaware limited liability company

5. Kennedy Wilson Overseas Investments, Inc., a Delaware corporation

6. SG KW Venture I Manager LLC, a Delaware limited liability company

7. KW Summer House Manager, LLC, a Delaware limited liability company

8. KW Montclair, LLC, a Delaware limited liability company

9. KW Serenade Manager, LLC, a Delaware limited liability company

10. K-W Santiago Inc., a California corporation

11. KW Redmond Manager, LLC, a Delaware limited liability company

12. Dillingham Ranch Aina LLC, a Delaware limited liability company

13. 68-540 Farrington, LLC, a Delaware limited liability company

14. KW Dillingham Aina LLC, a Delaware limited liability company

15. Kennedy Wilson Fund Management Group, LLC, a California limited liability company

16. Kennedy-Wilson International, a California corporation

17. Kennedy-Wilson Tech Ltd., a California corporation

18. KWP Financial I, a California corporation

19. Kennedy Wilson Auction Group Inc., a California corporation

20. KWF Manager IV, LLC, a Delaware limited liability company

21. KW Ireland, LLC, a Delaware limited liability company

22. Kennedy Wilson Real Estate Sales & Marketing, a California corporation

23. KWF Investors IV, LLC, a Delaware limited liability company

24. Santa Maria Land Partners Manager, LLC, a Delaware limited liability company

25. KW Investment Adviser, LLC, a Delaware limited liability company

26. Kennedy-Wilson Capital, a California corporation

27. KWF Investors VII, LLC, a Delaware limited liability company

28. KWF Manager VII, LLC, a Delaware limited liability company

29. KW Residential Capital, LLC, a Delaware limited liability company

30. KW Boise Plaza, LLC, a Delaware limited liability company

31. KW EU Loan Partners II, LLC, a Delaware limited liability company

32. KW Harrington LLC, a Delaware limited liability company

33. KW 5200 Lankershim Manager, LLC, a Delaware limited liability company

34. KWF Manager X, LLC, a Delaware limited liability company

35. KWF Manager XI, LLC, a Delaware limited liability company

36. KWF Manager XII, LLC, a Delaware limited liability company

37. KW Real Estate Venture XIII, LLC, a Delaware limited liability company

38. KWF Manager XIII, LLC, a Delaware limited liability company

39. KW EU Loan Partners III, LLC, a Delaware limited liability company

40. KW EU Investors I, LLC, a Delaware limited liability company

41. KW Richfield Plaza, LLC, a Delaware limited liability company

42. KW Currier Square Shopping Center, LLC, a Delaware limited liability company

43. KW Creekview Shopping Center, LLC, a Delaware limited liability company

44. KW Securities, LLC, a Delaware limited liability company

45. KW Victory Land Loan, LLC, a Delaware limited liability company

46. KW Victory Plaza Loan, LLC, a Delaware limited liability company

47. Country Ridge IX, LLC, a Delaware limited liability company

48. KW EU Investors VIII, LLC, a Delaware limited liability company

49. KW Park Santa Fe, LLC, a Delaware limited liability company

50. KW Cypress, LLC, a Delaware limited liability company

51. KW Tacoma Condos, LLC, a Delaware limited liability company

52. KW Desert Ramrod Sponsor, LLC, a Delaware limited liability company

53. KW 9350 Civic Center Drive, LLC, a Delaware limited liability company

54. KW Taylor Yard 55, LLC, a Delaware limited liability company

55. KW Red Cliff Shopping Center, LLC, a Delaware limited liability company

56. KW Holiday Village Shopping Center, LLC, a Delaware limited liability company

57. KW Hilltop Manager II, LLC, a Delaware limited liability company

58. KW Bozeman Investors, LLC, a Delaware limited liability company

59. KW One Baxter Way GP, LLC, a Delaware limited liability company

60. KW Riverdale and 36, LLC, a Delaware limited liability company

61. KW 400 California Member, LLC, a Delaware limited liability company

62. KW CIG Management Services, LLC, a Delaware limited liability company

63. KW Terra West Sponsor, LLC, a Delaware limited liability company

64. KW Hanover Quay, LLC, a Delaware limited liability company

65. Kennedy Wilson Property Equity VI, LLC, a Delaware limited liability company

66. Kennedy Wilson Property Services VI, LLC, a Delaware limited liability company

67. KW LV 3 Sponsor, LLC, a Delaware limited liability company

68. KW NB LLC, a Delaware limited liability company

69. KW Camarillo Land, LLC, a Delaware limited liability company

70. KW 2013EE LLC, a Delaware limited liability company

71. KW EU PRS Investor, LLC, a Delaware limited liability company

72. KW Rosewood Premiere, LLC, a Delaware limited liability company

73. KW River Pointe Premier, LLC, a Delaware limited liability company

74. KW Kawana Springs, a Delaware limited liability company

75. KW Quebec Participant, LLC, a Delaware limited liability company

76. KW Quebec Asset Manager, LLC, a Delaware limited liability company

77. KW Real Estate II Equity, LLC, a Delaware limited liability company

78. KW Real Estate II Carry, LLC, a Delaware limited liability company

79. KW Real Estate II GP, LLC, a Delaware limited liability company

80. KW Sunset CP Participant, LLC, a Delaware limited liability company

81. KW Sunset CP Asset Manager, LLC, a Delaware limited liability company

82. KW CP West Hills Participant, LLC, a Delaware limited liability company

83. KW CP West Hills Asset Manager, LLC, a Delaware limited liability company

84. KW Linder Road, LLC, a Delaware limited liability company

85. KW Seattle Office Portfolio GP, LLC, a Delaware limited liability company

86. KW CDO Investor, LLC, a Delaware limited liability company

87. KW Hamilton Landing—Land, LLC, a Delaware limited liability company

88. KW Rancho Mirage Loan, LLC, a Delaware limited liability company

89. KW Sunset North LLC, a Delaware limited liability company

90. KW Heights Investor, LLC, a Delaware limited liability company

91. KW Burlingame Point Loan, LLC, a Delaware limited liability company

92. KW Pacifica, LLC, a Delaware limited liability company

93. KW Riverwalk, LLC, a Delaware limited liability company

94. KW ABQ, LLC, a Delaware limited liability company

95. KW F5 Tower, LLC (formerly KW 2016F LLC), a Delaware limited liability company

96. KW Manhattan Beach Studio Loan, LLC (formerly KW 2016G LLC), a Delaware limited liability company

97. KW Golden State Tower Loan, LLC (formerly KW 2016H LLC), a Delaware limited liability company

98. KW RockVue, LLC (formerly KW 2016I LLC), a Delaware limited liability company

99. KW South Main Station, LLC (formerly KW 2016J LLC), a Delaware limited liability company

100. KWF Manager, LLC (formerly KW 2016K LLC), a Delaware limited liability company

101. KW Residences at Harvard, LLC (formerly KW 2016L LLC), a Delaware limited liability company

102. KW Moffett Place, LLC (formerly KW 2016M LLC), a Delaware limited liability company

103. KW The Press, LLC (formerly KW 2016N LLC), a Delaware limited liability company

104. KW Orchard-Trimble Campus, LLC (formerly KW 2016Q LLC), a Delaware limited liability company

105. KW 50 West, LLC (formerly KW 2016R LLC), a Delaware limited liability company

106. KW Kohanaiki, LLC (formerly KW 2016T LLC), a Delaware limited liability company

107. KW EU Capital 2, LLC (formerly KW 2016U LLC), a Delaware limited liability company

108. KW EU Capital 3, LLC (formerly KW 2016V LLC), a Delaware limited liability company

109. KW 134th Street Lofts, LLC (formerly KW 2016W LLC), a Delaware limited liability company

110. KW Ashton Parc Villagio, LLC (formerly KW 2016X LLC), a Delaware limited liability company

111. KW SB Manager, LLC (formerly Diamond 2 US, LLC), a Delaware limited liability company

112. KW THE CADENCE, LLC (formerly KW EU Investors III, LLC), a Delaware limited liability company

113. KW WATERLINE APARTMENTS, LLC (formerly KW EU Investors II, LLC), a Delaware limited liability company

114. KW 360 Spear, LLC (formerly KW 2016Y LLC), a Delaware limited liability company

115. KW Advanta Office Commons, LLC (formerly KW 2016 Z LLC), a Delaware limited liability company

116. KW South Bay Galleria, LLC (formerly KW 2019A, LLC), a Delaware limited liability company

117. KW Pine 43, LLC (formerly KW 2019C, LLC), a Delaware limited liability company

118. KW Eisley Sponsor, LLC (formerly KW 2019D, LLC), a Delaware limited liability company

119. KW LPC Investor, LLC (formerly KW Pan, LLC, formerly KW 2016O LLC), a Delaware limited liability company

120. KW OXFORD NORTH, LLC (formerly KW 9th Street Market, LLC, formerly KW 2016S LLC), a Delaware limited liability company

121. KW ALILA NAPA VALLEY, LLC (formerly KW 2019F, LLC), a Delaware limited liability company

EX-5.2

Exhibit 5.2

KULIK GOTTESMAN SIEGEL & WARE LLP
Glen L. Kulik Donald S. Gottesman Leonard Siegel Thomas M. Ware II David A. Bernardoni Mitchell S. Brachman Gerry Kilroy Justin Nash Lee Abukasis Stella Chang Samantha Johnson	Attorneys at Law Comerica Bank Building 15303 Ventura Boulevard Suite 1400 Sherman Oaks, California 91403 www.kgswlaw.com	Telephone  (310) 557-9200   (818) 817-3600 Facsimile (310) 557-0224 Sender’s e-mail address: dgottesman@kgswlaw.com File No. 2192-0001

August 23, 2021

Kennedy-Wilson Holdings, Inc.

and

Kennedy-Wilson, Inc.

151 S. El Camino Drive

Beverly Hills, CA 90212

Re: 4.75% Senior Notes due 2030

We have acted as special counsel to Kennedy-Wilson, Inc., a Delaware corporation (the “Company”), in connection with the offer and sale to the underwriters (the “Underwriters”) named in Schedule A to the Underwriting Agreement (the “Underwriting Agreement”), dated as of August 9, 2021, among the representative of the Underwriters, the Company and the guarantors party thereto, of $600,000,000 aggregate principal amount of the 4.75% Senior Notes due 2030 (the “Notes”) pursuant to the Underwriting Agreement. The Notes are being issued pursuant to an indenture (the “Base Indenture”), dated as of March 25, 2014, between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by Supplemental Indenture No 2030-1 (“Supplemental Indenture No. 2030-1” and, together with the Base Indenture, the “Indenture”), dated as of August 23, 2021, among the Company, the guarantors party thereto and the Trustee. The Notes will be guaranteed (the “Guarantees,” and, together with the Notes, the “Securities”) by the entities listed on Annex A hereto (collectively, the “Guarantors”).

The offer and sale of the Securities is being made pursuant to an automatic shelf registration statement on Form S-3 (File No. 333-235473) under the Securities Act of 1933, as amended (the “Act”) filed with the Securities and Exchange Commission (the “Commission”) on December 12, 2019 (such registration statement, as amended, the “Registration Statement”), and a prospectus supplement (the “Prospectus Supplement”) filed by the Company with the Commission on August 9, 2021.

This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act. No opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus Supplement, other than as expressly stated herein with respect to the issue of the Securities.

KULIK GOTTESMAN SIEGEL & WARE LLP

Re: 4.75% Senior Notes due 2030

August 23, 2021

Page 2

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, the Guarantors 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 California, the general corporation law of the state of Delaware and the Delaware Limited Liability Act, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of California and Delaware, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state. Various matters concerning the laws of the State of New York are addressed in the letter of Latham & Watkins 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, the certificates representing the Notes have been duly executed and delivered by the Company, and, when duly authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the Underwriting Agreement, (a) the Notes will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and (b) the Guarantees will be legally valid and binding obligations of the respective Guarantors, enforceable against the respective Guarantors 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) 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), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought; (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; and (iv) 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, including those contained in Section 4.4 of the Base Indenture, (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 Security, 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

KULIK GOTTESMAN SIEGEL & WARE LLP

Re: 4.75% Senior Notes due 2030

August 23, 2021

Page 3

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, (q) provisions purporting to make a guarantor primarily liable rather than as a surety and provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation and (r) the severability, if invalid, of provisions to the foregoing effect. We are not passing upon the creation, validity, attachment, perfection, or priority of any lien or security interest.

With your consent, we have assumed that (i) each of the Base Indenture and Supplemental Indenture No. 2030-1 has been duly authorized, executed and delivered by the Trustee, (ii) each of the Base Indenture and Supplemental Indenture No. 2030-1 constitutes legally valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with its terms, and (iii) the status of each of the Base Indenture and Supplemental Indenture No. 2030-1 as legally valid and binding obligations of the parties will not be affected by any (a) breaches of, or defaults under, agreements or instruments, (b) violations of statutes, rules regulations or court or governmental orders, or (c) 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 of this opinion as an exhibit to a Current Report on Form 8-K that will be incorporated by reference into the Registration Statement. 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.

Very truly yours,

/s/ Donald S. Gottesman

Donald S. Gottesman

KULIK GOTTESMAN SIEGEL & WARE LLP

KULIK GOTTESMAN SIEGEL & WARE LLP

Re: 4.75% Senior Notes due 2030

August 23, 2021

Page 4

EXHIBIT A

Identified Guarantors

1. Kennedy-Wilson Holdings, Inc., a Delaware corporation

2. K-W Properties, a California corporation

3. KW BASGF II Manager, LLC, a Delaware limited liability company

4. KWF Investors I, LLC, a Delaware limited liability company

5. Kennedy Wilson Overseas Investments, Inc., a Delaware corporation

6. SG KW Venture I Manager LLC, a Delaware limited liability company

7. KW Summer House Manager, LLC, a Delaware limited liability company

8. KW Montclair, LLC, a Delaware limited liability company

9. KW Serenade Manager, LLC, a Delaware limited liability company

10. K-W Santiago Inc., a California corporation

11. KW Redmond Manager, LLC, a Delaware limited liability company

12. Dillingham Ranch Aina LLC, a Delaware limited liability company

13. 68-540 Farrington, LLC, a Delaware limited liability company

14. KW Dillingham Aina LLC, a Delaware limited liability company

15. Kennedy Wilson Fund Management Group, LLC, a California limited liability company

16. Kennedy-Wilson International, a California corporation

17. Kennedy-Wilson Tech Ltd., a California corporation

18. KWP Financial I, a California corporation

19. Kennedy Wilson Auction Group Inc., a California corporation

20. KWF Manager IV, LLC, a Delaware limited liability company

21. KW Ireland, LLC, a Delaware limited liability company

22. Kennedy Wilson Real Estate Sales & Marketing, a California corporation

23. KWF Investors IV, LLC, a Delaware limited liability company

24. Santa Maria Land Partners Manager, LLC, a Delaware limited liability company

25. KW Investment Adviser, LLC, a Delaware limited liability company

26. Kennedy-Wilson Capital, a California corporation

27. KWF Investors VII, LLC, a Delaware limited liability company

KULIK GOTTESMAN SIEGEL & WARE LLP

Re: 4.75% Senior Notes due 2030

August 23, 2021

Page 5

28. KWF Manager VII, LLC, a Delaware limited liability company

29. KW Residential Capital, LLC, a Delaware limited liability company

30. KW Boise Plaza, LLC, a Delaware limited liability company

31. KW EU Loan Partners II, LLC, a Delaware limited liability company

32. KW Harrington LLC, a Delaware limited liability company

33. KW 5200 Lankershim Manager, LLC, a Delaware limited liability company

34. KWF Manager X, LLC, a Delaware limited liability company

35. KWF Manager XI, LLC, a Delaware limited liability company

36. KWF Manager XII, LLC, a Delaware limited liability company

37. KW Real Estate Venture XIII, LLC, a Delaware limited liability company

38. KWF Manager XIII, LLC, a Delaware limited liability company

39. KW EU Loan Partners III, LLC, a Delaware limited liability company

40. KW EU Investors I, LLC, a Delaware limited liability company

41. KW Richfield Plaza, LLC, a Delaware limited liability company

42. KW Currier Square Shopping Center, LLC, a Delaware limited liability company

43. KW Creekview Shopping Center, LLC, a Delaware limited liability company

44. KW Securities, LLC, a Delaware limited liability company

45. KW Victory Land Loan, LLC, a Delaware limited liability company

46. KW Victory Plaza Loan, LLC, a Delaware limited liability company

47. Country Ridge IX, LLC, a Delaware limited liability company

48. KW EU Investors VIII, LLC, a Delaware limited liability company

49. KW Park Santa Fe, LLC, a Delaware limited liability company

50. KW Cypress, LLC, a Delaware limited liability company

51. KW Tacoma Condos, LLC, a Delaware limited liability company

52. KW Desert Ramrod Sponsor, LLC, a Delaware limited liability company

53. KW 9350 Civic Center Drive, LLC, a Delaware limited liability company

54. KW Taylor Yard 55, LLC, a Delaware limited liability company

55. KW Red Cliff Shopping Center, LLC, a Delaware limited liability company

56. KW Holiday Village Shopping Center, LLC, a Delaware limited liability company

57. KW Hilltop Manager II, LLC, a Delaware limited liability company

58. KW Bozeman Investors, LLC, a Delaware limited liability company

KULIK GOTTESMAN SIEGEL & WARE LLP

Re: 4.75% Senior Notes due 2030

August 23, 2021

Page 6

59. KW One Baxter Way GP, LLC, a Delaware limited liability company

60. KW Riverdale and 36, LLC, a Delaware limited liability company

61. KW 400 California Member, LLC, a Delaware limited liability company

62. KW CIG Management Services, LLC, a Delaware limited liability company

63. KW Terra West Sponsor, LLC, a Delaware limited liability company

64. KW Hanover Quay, LLC, a Delaware limited liability company

65. Kennedy Wilson Property Equity VI, LLC, a Delaware limited liability company

66. Kennedy Wilson Property Services VI, LLC, a Delaware limited liability company

67. KW LV 3 Sponsor, LLC, a Delaware limited liability company

68. KW NB LLC, a Delaware limited liability company

69. KW Camarillo Land, LLC, a Delaware limited liability company

70. KW 2013EE LLC, a Delaware limited liability company

71. KW EU PRS Investor, LLC, a Delaware limited liability company

72. KW Rosewood Premiere, LLC, a Delaware limited liability company

73. KW River Pointe Premier, LLC, a Delaware limited liability company

74. KW Kawana Springs, a Delaware limited liability company

75. KW Quebec Participant, LLC, a Delaware limited liability company

76. KW Quebec Asset Manager, LLC, a Delaware limited liability company

77. KW Real Estate II Equity, LLC, a Delaware limited liability company

78. KW Real Estate II Carry, LLC, a Delaware limited liability company

79. KW Real Estate II GP, LLC, a Delaware limited liability company

80. KW Sunset CP Participant, LLC, a Delaware limited liability company

81. KW Sunset CP Asset Manager, LLC, a Delaware limited liability company

82. KW CP West Hills Participant, LLC, a Delaware limited liability company

83. KW CP West Hills Asset Manager, LLC, a Delaware limited liability company

84. KW Linder Road, LLC, a Delaware limited liability company

85. KW Seattle Office Portfolio GP, LLC, a Delaware limited liability company

86. KW CDO Investor, LLC, a Delaware limited liability company

87. KW Hamilton Landing—Land, LLC, a Delaware limited liability company

88. KW Rancho Mirage Loan, LLC, a Delaware limited liability company

89. KW Sunset North LLC, a Delaware limited liability company

KULIK GOTTESMAN SIEGEL & WARE LLP

Re: 4.75% Senior Notes due 2030

August 23, 2021

Page 7

90. KW Heights Investor, LLC, a Delaware limited liability company

91. KW Burlingame Point Loan, LLC, a Delaware limited liability company

92. KW Pacifica, LLC, a Delaware limited liability company

93. KW Riverwalk, LLC, a Delaware limited liability company

94. KW ABQ, LLC, a Delaware limited liability company

95. KW F5 Tower, LLC, a Delaware limited liability company

96. KW Manhattan Beach Studio Loan, LLC, a Delaware limited liability company

97. KW Golden State Tower Loan, LLC, a Delaware limited liability company

98. KW RockVue, LLC, a Delaware limited liability company

99. KW South Main Station, LLC, a Delaware limited liability company

100. KWF Manager, LLC, a Delaware limited liability company

101. KW Residences at Harvard, LLC, a Delaware limited liability company

102. KW Moffett Place, LLC, a Delaware limited liability company

103. KW The Press, LLC, a Delaware limited liability company

104. KW Orchard-Trimble Campus, LLC, a Delaware limited liability company

105. KW 50 West, LLC, a Delaware limited liability company

106. KW Kohanaiki, LLC, a Delaware limited liability company

107. KW EU Capital 2, LLC, a Delaware limited liability company

108. KW EU Capital 3, LLC, a Delaware limited liability company

109. KW 134th Street Lofts, LLC, a Delaware limited liability company

110. KW Ashton Parc Villagio, LLC, a Delaware limited liability company

111. KW SB Manager, LLC, a Delaware limited liability company

112. KW THE CADENCE, LLC, a Delaware limited liability company

113. KW WATERLINE APARTMENTS, LLC, a Delaware limited liability company

114. KW 360 Spear, LLC, a Delaware limited liability company

115. KW Advanta Office Commons, LLC, a Delaware limited liability company

116. KW South Bay Galleria, LLC, a Delaware limited liability company

117. KW Pine 43, LLC, a Delaware limited liability company

118. KW Eisley Sponsor, LLC, a Delaware limited liability company

119. KW LPC Investor, LLC, a Delaware limited liability company

120. KW OXFORD NORTH, LLC, a Delaware limited liability company

121. KW ALILA NAPA VALLEY, LLC, a Delaware limited liability company

XML

Document and Entity Information	Aug. 23, 2021
Cover [Abstract]
Amendment Flag	false
Entity Central Index Key	0001408100
Document Type	8-K
Document Period End Date	Aug. 23, 2021
Entity Registrant Name	KENNEDY-WILSON HOLDINGS, INC.
Entity Incorporation State Country Code	DE
Entity File Number	001-33824
Entity Tax Identification Number	26-0508760
Entity Address, Address Line One	151 S El Camino Drive
Entity Address, City or Town	Beverly Hills
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	90212
City Area Code	(310)
Local Phone Number	887-6400
Written Communications	false
Soliciting Material	false
Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false
Security 12b Title	Common stock, $.0001 par value
Trading Symbol	KW
Security Exchange Name	NYSE
Entity Emerging Growth Company	false