Junior Subordinated Indenture between Vestin Realty Mortgage II, Inc. and The Bank of New York Trust Company, National Association, as Trustee Dated as of June 22, 2007
Exhibit
4.4
between
and
The
Bank of New York Trust Company, National Association,
as
Trustee
________________
Dated
as
of June 22, 2007
________________
NY
#1155026
v6
TABLE
OF CONTENTS
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Page
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Definitions
and Other Provisions of General Application
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1
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SECTION
1.1.
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Definitions.
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1
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SECTION
1.2.
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Compliance
Certificate and Opinions.
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12
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SECTION
1.3.
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Forms
of Documents Delivered to Trustee.
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12
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SECTION
1.4.
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Acts
of Holders.
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13
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SECTION
1.5.
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Notices,
Etc. to Trustee and Company.
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15
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SECTION
1.6.
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Notice
to Holders; Waiver.
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15
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SECTION
1.7.
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Effect
of Headings and Table of Contents.
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16
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SECTION
1.8.
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Successors
and Assigns.
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16
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SECTION
1.9.
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Separability
Clause.
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16
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SECTION
1.10.
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Benefits
of Indenture.
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16
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SECTION
1.11.
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Governing
Law.
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16
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SECTION
1.12.
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Submission
to Jurisdiction.
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16
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SECTION
1.13.
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Non-Business
Days.
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17
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ARTICLE
II.
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Security
Forms
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17
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SECTION
2.1.
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Form
of Security.
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17
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SECTION
2.2.
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Restricted
Legend.
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21
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SECTION
2.3.
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Form
of Trustee’s Certificate of Authentication.
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24
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SECTION
2.4.
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Temporary
Securities.
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24
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|
SECTION
2.5.
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Definitive
Securities.
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24
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ARTICLE
III.
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The
Securities
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25
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SECTION
3.1.
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Payment
of Principal and Interest.
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25
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|
SECTION
3.2.
|
Denominations.
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27
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|
SECTION
3.3.
|
Execution,
Authentication, Delivery and Dating.
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27
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|
SECTION
3.4.
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Global
Securities.
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28
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SECTION
3.5.
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Registration,
Transfer and Exchange Generally.
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30
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SECTION
3.6.
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Mutilated,
Destroyed, Lost and Stolen Securities.
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31
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SECTION
3.7.
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Persons
Deemed Owners.
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32
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SECTION
3.8.
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Cancellation.
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32
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SECTION
3.9.
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Reserved.
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33
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SECTION
3.10.
|
Reserved.
|
33
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|
SECTION
3.11.
|
Agreed
Tax Treatment.
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33
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|
SECTION
3.12.
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CUSIP
Numbers.
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33
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|
ARTICLE
IV.
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Satisfaction
and Discharge
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33
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SECTION
4.1.
|
Satisfaction
and Discharge of Indenture.
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33
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SECTION
4.2.
|
Application
of Trust Money.
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34
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ARTICLE
V.
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Remedies
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35
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SECTION
5.1.
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Events
of Default.
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35
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|
SECTION
5.2.
|
Acceleration
of Maturity; Rescission and Annulment.
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36
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|
SECTION
5.3.
|
Collection
of Indebtedness and Suits for Enforcement by Trustee.
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37
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SECTION
5.4.
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Trustee
May File Proofs of Claim.
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38
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SECTION
5.5.
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Trustee
May Enforce Claim Without Possession of Securities.
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38
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|
SECTION
5.6.
|
Application
of Money Collected.
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38
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|
SECTION
5.7.
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Limitation
on Suits.
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39
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|
SECTION
5.8.
|
Unconditional
Right of Holders to Receive Principal, Premium, if any, and Interest;
Direct Action by Holders of Preferred Securities.
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39
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SECTION
5.9.
|
Restoration
of Rights and Remedies.
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39
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|
SECTION
5.10.
|
Rights
and Remedies Cumulative.
|
40
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|
SECTION
5.11.
|
Delay
or Omission Not Waiver.
|
40
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|
SECTION
5.12.
|
Control
by Holders.
|
40
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|
SECTION
5.13.
|
Waiver
of Past Defaults.
|
40
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|
SECTION
5.14.
|
Undertaking
for Costs.
|
41
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|
SECTION
5.15.
|
Waiver
of Usury, Stay or Extension Laws.
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41
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ARTICLE
VI.
|
The
Trustee
|
42
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|
SECTION
6.1.
|
Corporate
Trustee Required.
|
42
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|
SECTION
6.2.
|
Certain
Duties and Responsibilities.
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42
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|
SECTION
6.3.
|
Notice
of Defaults.
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44
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SECTION
6.4.
|
Certain
Rights of Trustee.
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44
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|
SECTION
6.5.
|
May
Hold Securities.
|
46
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|
SECTION
6.6.
|
Compensation;
Reimbursement; Indemnity.
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46
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|
SECTION
6.7.
|
Resignation
and Removal; Appointment of Successor.
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47
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|
SECTION
6.8.
|
Acceptance
of Appointment by Successor.
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48
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|
SECTION
6.9.
|
Merger,
Conversion, Consolidation or Succession to Business.
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48
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|
SECTION
6.10.
|
Not
Responsible for Recitals or Issuance of Securities.
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49
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|
SECTION
6.11.
|
Appointment
of Authenticating Agent.
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49
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ARTICLE
VII.
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Holder’s
Lists and Reports by Company
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50
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|
SECTION
7.1.
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Company
to Furnish Trustee Names and Addresses of Holders.
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50
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|
SECTION
7.2.
|
Preservation
of Information, Communications to Holders.
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51
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|
SECTION
7.3.
|
Reports
by Company.
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51
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ARTICLE
VIII.
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Consolidation,
Merger, Conveyance, Transfer or Lease
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52
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SECTION
8.1.
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Company
May Consolidate, Etc., Only on Certain Terms.
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52
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SECTION
8.2.
|
Successor
Company Substituted.
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53
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ARTICLE
IX.
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Supplemental
Indentures
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53
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|
SECTION
9.1.
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Supplemental
Indentures without Consent of Holders.
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53
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SECTION
9.2.
|
Supplemental
Indentures with Consent of Holders.
|
54
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SECTION
9.3.
|
Execution
of Supplemental Indentures.
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55
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SECTION
9.4.
|
Effect
of Supplemental Indentures.
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55
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SECTION
9.5.
|
Reference
in Securities to Supplemental Indentures.
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55
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ARTICLE
X.
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Covenants
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56
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SECTION
10.1.
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Payment
of Principal, Premium, if any, and Interest.
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56
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SECTION
10.2.
|
Money
for Security Payments to be Held in Trust.
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56
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SECTION
10.3.
|
Statement
as to Compliance.
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57
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SECTION
10.4.
|
Calculation
Agent.
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57
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|
SECTION
10.5.
|
Additional
Tax Sums.
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58
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SECTION
10.6.
|
Additional
Covenants.
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58
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|
SECTION
10.7.
|
Waiver
of Covenants.
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59
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SECTION
10.8.
|
Treatment
of Securities.
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60
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|
SECTION
10.9
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Financial
Covenants
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59
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SECTION
10.10
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Delivery
of Information
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59
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SECTION
10.11
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Inspection
of Books and Records
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59
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ARTICLE
XI.
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Redemption
of Securities
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61
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SECTION
11.1.
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Optional
Redemption.
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61
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SECTION
11.2.
|
Special
Event Redemption.
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61
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SECTION
11.3.
|
Election
to Redeem; Notice to Trustee.
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61
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SECTION
11.4.
|
Selection
of Securities to be Redeemed.
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62
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SECTION
11.5.
|
Notice
of Redemption.
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62
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|
SECTION
11.6.
|
Deposit
of Redemption Price.
|
63
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|
SECTION
11.7.
|
Payment
of Securities Called for Redemption.
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63
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ARTICLE
XII.
|
Subordination
of Securities
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62
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SECTION
12.1.
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Securities
Subordinate to Senior Debt.
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62
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SECTION
12.2.
|
No
Payment When Senior Debt in Default; Payment Over of Proceeds
Upon
Dissolution, Etc.
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62
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|
SECTION
12.3.
|
Payment
Permitted If No Default.
|
64
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SECTION
12.4.
|
Subrogation
to Rights of Holders of Senior Debt.
|
64
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|
SECTION
12.5.
|
Provisions
Solely to Define Relative Rights.
|
64
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SECTION
12.6.
|
Trustee
to Effectuate Subordination.
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65
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SECTION
12.7.
|
No
Waiver of Subordination Provisions.
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65
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SECTION
12.8.
|
Notice
to Trustee.
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65
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|
SECTION
12.9.
|
Reliance
on Judicial Order or Certificate of Liquidating Agent.
|
66
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|
SECTION
12.10.
|
Trustee
Not Fiduciary for Holders of Senior Debt.
|
66
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|
SECTION
12.11.
|
Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
|
66
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|
SECTION
12.12.
|
Article
Applicable to Paying Agents
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68
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ARTICLE
XIII.
|
Defeasance
|
67
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|
SECTION
13.1.
|
Defeasance
and Discharge
|
67
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|
SECTION
13.2.
|
Conditions
to Defeasance
|
67
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|
SECTION
13.3.
|
Deposited
Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.
|
68
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|
SECTION
13.4.
|
Reinstatement.
|
69
|
SCHEDULES
Schedule
A–Determination of LIBOR
Exhibit
A–Form of Officer’s Financial Certificate
Junior
Subordinated Indenture, dated as of June 22, 2007, between Vestin Realty
Mortgage II, Inc., a Maryland corporation (the “Company”), and The Bank
of New York Trust Company,National Association, a national banking
association, as Trustee (in such capacity, the “Trustee”).
Recitals
of the Company
Whereas,
the Company has duly authorized the execution and delivery of this Indenture
to
provide for the issuance of its unsecured junior subordinated notes (the
“Securities”) issued to evidence loans made to the Company of the
proceeds from the issuance by Vestin II Capital Trust I, a
Delaware statutory trust (the “Trust”), of
undivided preferred beneficial interests in the assets of the Trust (the
“Preferred Securities”) and undivided common beneficial interests in
the assets of the Trust (the “Common Securities” and, together with the
Preferred Securities, the “Trust Securities”), and to provide the terms
and conditions upon which the Securities are to be authenticated, issued
and
delivered; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company,
in
accordance with its terms, have been done.
Now,
Therefore, this Indenture Witnesseth:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
I
Definitions
and Other Provisions of General Application
SECTION
1.1. Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Article I have the meanings assigned to them in this
Article I;
(b) the
words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(c) all
accounting terms not otherwise defined herein have the meanings assigned
to them
in accordance with GAAP;
(d) unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this
Indenture;
(e) the
words
“hereby”, “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or
other subdivision;
(f) a
reference to the singular includes the plural and vice versa; and
(g) the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“Act”
when used with respect to any Holder, has the meaning specified in Section
1.4.
“Administrative
Trustee” means, with respect to the Trust, each Person identified as an
“Administrative Trustee” in the Trust Agreement, solely in its capacity as
Administrative Trustee of the Trust under the Trust Agreement and not in
its
individual capacity, or its successor in interest in such capacity, or any
successor Administrative Trustee appointed as therein provided.
“Additional
Interest” means the interest, if any, that shall accrue on any amounts
payable on the Securities, the payment of which has not been made on the
applicable Interest Payment Date and which shall accrue at the rate per annum
specified or determined as specified in such Security, in each case to the
extent legally enforceable.
“Additional
Tax Sums” has the meaning specified in Section 10.5.
“Additional
Taxes” means taxes, duties or other governmental charges imposed on the
Trust as a result of a Tax Event (which, for the sake of clarity, does not
include amounts required to be deducted or withheld by the Trust from payments
made by the Trust to or for the benefit of the Holder of, or any Person that
acquires a beneficial interest in, the Securities).
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition,
“control,” when used with respect to any specified Person, means the power to
direct 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.
“Applicable
Depositary Procedures” means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section
6.11 to act on behalf of the Trustee to authenticate the
Securities.
“Board
of Directors” means the board of directors of the Company or any duly
authorized committee of that board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of
Directors and to be in full force and effect on the date of such
certification.
“Breakage
Costs” means any and all reasonable costs and fees of any holder of
Preferred Securities (including, without limitation, the reasonable fees
and
expenses of any counsel engaged by such holder to enforce the obligations
of the
Company hereunder) (as determined by such holder) directly associated or
incurred in connection with the unwinding, terminating, modifying or otherwise
breaking of any interest rate swap or other interest rate hedging arrangement
entered into with respect to the interest rate on the Preferred Securities
prior
to the expiration of the Fixed Rate Period where such unwinding, termination,
modification or breaking is caused by the payment of principal on the Securities
prior to the expiration of the Fixed Rate Period.
“Breakage
Gains” means the amount of gain actually realized by any holder of
Preferred Securities (as reasonably determined by such holder), directly
associated or incurred in connection with unwinding, terminating, modifying
or
otherwise breaking any interest rate swap or other interest rate hedging
arrangement entered into with respect to the interest rate on the Preferred
Securities prior to the expiration of the Fixed Rate Period where such
unwinding, termination, modification or breaking is caused by the payment
of
principal on the Securities prior to the expiration of the Fixed Rate
Period.
“Business
Day” means any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in the City of New York are authorized or required by
law
or executive order to remain closed or (iii) a day on which the Corporate
Trust
Office of the Trustee is closed for business.
“Calculation
Agent” has the meaning specified in Section 10.4.
“Change
of Control” means (i) any person (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), including a “group” as defined in Section
13(d)(3) of the Exchange Act (but excluding a director or other fiduciary
holding securities under an employee benefit plan of the Company), becomes
the
beneficial owner of Equity Interests of the Company having at least fifty
percent (50%) of the total number of votes that may be cast for the election
of
directors of the Company; (ii) the merger or other business combination of
the
Company, sale of all or substantially all of the Company’s assets or combination
of the foregoing transactions (a “Transaction”), other than a
Transaction immediately following which the shareholders of the Company
immediately prior to the Transaction continue to have a majority of the voting
power in the resulting entity (excluding for this purpose any shareholder
owning
directly or indirectly more than ten percent (10%) of the shares of the other
company involved in the Transaction); or (iii) the persons who were directors
of
the Company on the date hereof (the “Incumbent Directors”) shall cease
to constitute at least a majority of the Board or a majority of the board
of
directors of any successor to the Company; provided, that, any director
who was not a director as of the date hereof shall be deemed to be an Incumbent
Director if such director was elected to the Board by, or on the recommendation
of or with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors either actually or by prior operation of
this
provision, unless such election, recommendation or approval was the result
of an
actual or threatened election contest of the type contemplated by Regulation
14a-11 promulgated under the Exchange Act or any successor
provision.
“Change
of Control Election” has the meaning specified in Section
10.6(d).
“Change
of Control Notice” has the meaning specified in Section
10.6(d).
“Code”
means the Internal Revenue Code of 1986, as amended.
“Common
Securities” has the meaning specified in the first recital of this
Indenture.
“Commission”
has the meaning specified in Section 7.3(c).
“Company”
means the Person named as the “Company” in the first paragraph of this
Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall
mean such successor Person.
“Company
Request” and “Company Order” mean, respectively, the written
request or order signed in the name of the Company by its Chairman of the
Board
of Directors, its Vice Chairman of the Board of Directors, its Chief Executive
Officer, President or a Vice President, and by its Chief Financial Officer,
its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and
delivered to the Trustee. Notwithstanding the foregoing, a Company Order
for the
purposes of authentication and delivery of the Securities pursuant to Section
3.3(a) shall require the signature of only one of the above referenced
officers of the Company.
“Corporate
Trust Office” means the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which
office
at the date of this Indenture is located at 000 Xxxxxx, 00xx Xxxxx,
Xxxxxxx,
Xxxxx 00000 Attn: Global Corporate Trust – Vestin Realty Mortgage II, Inc.
Initially, all notices and correspondence shall be addressed to Xxxxxxxx
Xxxxxxx, telephone number (000) 000-0000.
“Debt”
means, with respect to any Person, whether recourse is to all or a portion
of
the assets of such Person, whether currently existing or hereafter incurred
and
whether or not contingent and without duplication, (i) every obligation of
such
Person for money borrowed; (ii) every obligation of such Person evidenced
by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of such Person with respect to letters
of
credit, bankers’ acceptances or similar facilities issued for the account of
such Person; (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or other accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of
this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; (vii) every obligation of the
type
referred to in clauses (i) through (vi) of another Person and all dividends
of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or
otherwise; and (viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses (i) through
(vii).
“Defaulted
Interest” has the meaning specified in Section 3.1(c).
“Defeasance”
has the meaning specified in Section 13.1.
“Defeasance
Maturity Date” has the meaning specified in Section
13.2(a).
“Delaware
Trustee” means, with respect to the Trust, the Person identified as the
“Delaware Trustee” in the Trust Agreement, solely in its capacity as Delaware
Trustee of the Trust under the Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware Trustee appointed as therein provided.
“Depositary”
means an organization registered as a clearing agency under the Exchange
Act
that is designated as Depositary by the Company or any successor
thereto. DTC will be the initial Depositary.
“Depositary
Participant” means a broker, dealer, bank, other financial institution or
other Person for whom from time to time a Depositary effects book-entry
transfers and pledges of securities deposited with the Depositary.
“Distributions”
means amounts payable in respect of the Trust Securities as provided in the
Trust Agreement and referred to therein as “Distributions.”
“Dollar”
or“$” means the currency of the United States of America that, as
at the time of payment, is legal tender for the payment of public and private
debts.
“DTC”
means The Depository Trust Company, a New York corporation, or any successor
thereto.
“EBITDA”
means, for any period, without duplication:
(a) the
sum of the following amounts attributable to such period: (i) Net Income,
plus (ii) Interest Expense, (iii) charges against income for all federal,
state and local taxes, (iv) depreciation expense, (v) amortization expense,
(vi)
other non-cash charges and expenses (including non-cash charges resulting
from
accounting changes), and (vii) any losses arising outside of the ordinary
course
of business which have been included in the determination of Net Income,
all as
determined in accordance with GAAP on a consolidated basis for the Company
and
its consolidated subsidiaries, minus
(b) any
gains arising outside the ordinary course of business which have been included
in the determination of Net Income, as determined on a consolidated basis
for
the Company and its consolidated subsidiaries.
“XXXXX”
has the meaning specified in Section 7.3(c).
“Electing
Securities” means the Outstanding Securities corresponding to the Preferred
Securities held by a holder of Preferred Securities making a Change of Control
Election.
“Equity
Interests” means (a) the partnership interests (general or limited) in a
partnership, (b) the membership interests in a limited liability company
and (c)
the shares or stock interests (both common stock and preferred stock) in
a
corporation.
“Event
of Default” has the meaning specified in Section 5.1.
“Exchange
Act” means the Securities Exchange Act of 1934 or any statute successor
thereto, in each case as amended from time to time.
“Expiration
Date” has the meaning specified in Section 1.4(h).
“Fixed
Rate Period” shall have the meaning in the form of Security set forth in
Section 2.1.
“GAAP”
means United States generally accepted accounting principles, consistently
applied, from time to time in effect.
“Global
Security” means a Security offered and sold in reliance on Regulation S
under the Securities Act that evidences all or part of the Securities, the
ownership and transfers of which shall be made through book entries by a
Depositary.
“Government
Obligation” means (a) any security that is (i) a direct obligation of the
United States of America of which the full faith and credit of the United
States
of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
or
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii),
is not callable or redeemable at the option of the issuer thereof, and (b)
any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation that
is
specified in clause (a) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment
of
principal of or interest on any Government Obligation that is so specified
and
held, provided, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such
depositary receipt from any amount received by the custodian in respect of
the
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
“Holder”
means a Person in whose name a Security is registered in the Securities
Register.
“Indenture”
means this instrument as originally executed or as it may from time to time
be
amended or supplemented by one or more amendments or indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
“Interest
Expense” means for any period, without duplication, the aggregate amount of
interest which, in accordance with GAAP, would be included on an income
statement for the Company and its consolidated subsidiaries on a consolidated
basis as interest expense, together with all interest capitalized or deferred
during such period.
“Interest
Payment Date” means January 30, April 30, July 30 and October 30 of each
year, commencing on July 30, 2007, during the term of this
Indenture.
“Investment
Company Act” means the Investment Company Act of 1940, as amended, or any
successor statute thereto, in each case as amended from time to
time.
“Investment
Company Event” means the receipt by the Company of an Opinion of Counsel
experienced in such matters to the effect that, as a result of the occurrence
of
a change in law or regulation (including any announced prospective change)
or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there
is
more than an insubstantial risk that the Trust is or, within ninety (90)
days of
the date of such opinion will be, considered an “investment company” that is
required to be registered under the Investment Company Act, which change
or
prospective change becomes effective or would become effective, as the case
may
be, on or after the date of the issuance of the Securities.
“LIBOR”
has the meaning specified in Schedule A.
“LIBOR
Business Day” has the meaning specified in Schedule A.
“LIBOR
Determination Date” has the meaning specified in Schedule
A.
“Liquidation
Amount” has the meaning specified in the Trust Agreement.
“Mandatory
Redemption Price” has the meaning specified in Section
11.1(b).
“Maturity”
means, when used with respect to any Security, the date on which the principal
of such Security or any installment of principal becomes due and payable
as
therein or herein provided, whether at the Stated Maturity or by declaration
of
acceleration, call for redemption or otherwise.
“Net
Income”
means,
with reference to any period, the net income (or loss) of the Company and
its
subsidiaries for such period (taken as a cumulative whole), as determined
in
accordance with GAAP, after eliminating all offsetting debits and credits
between the Company and its subsidiaries and all other items required to
be
eliminated in the course of the preparation of consolidated financial statements
of the Company and its subsidiaries in accordance with GAAP.
“Notice
of Default” means a written notice of the kind specified in Section
5.1(c).
“Officer’s
Certificate” means a certificate signed by the Chairman of the Board, a
Vice Chairman of the Board, the Chief Executive Officer, the President or
a Vice
President, and by the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company and delivered
to the Trustee.
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for or
an employee of the Company or any Affiliate of the Company.
“Optional
Redemption Price” has the meaning set forth in Section
11.1.
“Original
Issue Date” means the date of original issuance of each
Security.
“Outstanding”
means, when used in reference to any Securities, as of the date of
determination, all Securities theretofore authenticated and delivered under
this
Indenture, except:
(i) Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; provided, that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities
that have been paid or in substitution for or in lieu of which other Securities
have been authenticated and delivered pursuant to the provisions of this
Indenture, unless proof satisfactory to the Trustee is presented that any
such
Securities are held by Holders in whose hands such Securities are valid,
binding
and legal obligations of the Company;
provided,
that 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, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other
obligor shall be disregarded and deemed not to be Outstanding unless the
Company
shall hold all Outstanding Securities, except that, in determining whether
the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that
a
Responsible Officer of the Trustee actually knows to be so owned shall be
so
disregarded. Securities so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of
the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities
or
any Affiliate of the Company or such other obligor. Notwithstanding
anything herein to the contrary, Securities initially issued to the Trust
that
are owned by the Trust shall be deemed to be Outstanding notwithstanding
the
ownership by the Company or an Affiliate of any beneficial interest in the
Trust.
“Paying
Agent” means the Trustee or any Person (other than the
Company or any Affiliate of the Company) authorized by the Company to pay
the
principal of or any premium or interest on, or other amounts in respect of,
any
Securities on behalf of the Company.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, company, limited
liability company, trust, unincorporated association, or government, or any
agency or political subdivision thereof, or any other entity of whatever
nature.
“Place
of Payment” means, with respect to the Securities, the Corporate Trust
Office of the Trustee.
“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any
security authenticated and delivered under Section 3.6 in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the
same debt as the mutilated, destroyed, lost or stolen Security.
“Preferred
Securities” has the meaning specified in the first recital of this
Indenture.
“Proceeding”
has the meaning specified in Section 12.2(b).
“Property
Trustee” means the Person identified as the “Property Trustee” in the Trust
Agreement, solely in its capacity as Property Trustee of the Trust under
the
Trust Agreement and not in its individual capacity, or its successor in interest
in such capacity, or any successor Property Trustee appointed as therein
provided.
“Purchase
Agreement” means the Purchase Agreement or Purchase Agreements (whether one
or more) executed and delivered contemporaneously with this Indenture by
the
Trust, the Company and the purchaser(s) named therein, as the same may be
amended from time to time.
“Redemption
Date” means, when used with respect to any Security to be redeemed, the
date fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price” means, when used with respect to any Security to be redeemed, in
whole or in part, the Special Redemption Price or the Optional Redemption
Price,
as applicable, at which such Security or portion thereof is to be redeemed
as
fixed by or pursuant to this Indenture.
“Reference
Banks” has the meaning specified in Schedule A.
“Regular
Record Date” for the interest payable on any Interest Payment Date with
respect to the Securities means the date that is fifteen (15) days preceding
such Interest Payment Date (whether or not a Business Day).
“Responsible
Officer” means, when used with respect to the Trustee, the officer in the
Global Corporate Trust department of the Trustee having direct responsibility
for the administration of this Indenture.
“Rights
Plan” means a plan of the Company providing for the issuance by the Company
to all holders of its Equity Interests of rights entitling the holders thereof
to subscribe for or purchase Equity Interests or any class or series of Equity
Interests in the Company which rights (i) are deemed to be transferred with
such
Equity Interests and (ii) are also issued in respect of future issuances
of such
Equity Interests, in each case until the occurrence of a specified event
or
events.
“Securities”
or “Security” means any debt securities or debt security, as the case
may be, authenticated and delivered under this Indenture.
“Securities
Act” means the Securities Act of 1933 or any successor statute thereto,
in
each case as amended from time to time.
“Securities
Register” and “Securities Registrar” have the respective meanings
specified in Section 3.5.
“Senior
Debt” means the principal of and any premium and interest on (including
interest accruing on or after the filing of any petition in bankruptcy or
for
reorganization relating to the Company, whether or not such claim for
post-petition interest is allowed in such proceeding) all Debt of the Company,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless it is provided in the instrument creating or evidencing
the same or pursuant to which the same is outstanding, that such obligations
are
not superior in right of payment to the Securities issued under this
Indenture; provided, that Senior Debt shall not be deemed to
include any (i) debt or (ii) other debt securities (and guarantees, if any,
in
respect of such debt securities) issued to any trust other than the Trust
(or a
trustee of any such trust), partnership or other entity affiliated with the
Company that is a financing vehicle of the Company (a “financing entity”) in
connection with the issuance by such financing entity of equity securities
or
other securities, in each case of (i) or (ii) pursuant to an instrument that
ranks pari passu with or junior in right of payment to this
Indenture.
“Special
Event” means the occurrence of an Investment Company Event or a Tax
Event.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed
by the Trustee pursuant to Section 3.1(c)(i).
“Special
Redemption Price” has the meaning set forth in Section
11.2.
“Stated
Maturity” means July 30, 2020.
“Subsidiary”
of a Person means (a) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned
or
controlled, directly or indirectly, by such Person and/or by one or more
of its
Subsidiaries or (b) any partnership, limited liability company, association,
joint venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be owned
or
controlled, directly or indirectly, by such Person and/or by one or more
of its
Subsidiaries. Unless otherwise expressly provided, all references
herein to a “Subsidiary” shall mean a Subsidiary of the Company.
“Taberna”
has the meaning set forth in Section 7.3(b).
“Tangible
Net Worth” means, at any time:
(a) the
total assets of the Company and its subsidiaries which would be shown as
assets
on a consolidated balance sheet of the Company and its subsidiaries as of
such
time prepared in accordance with GAAP, after eliminating all amounts properly
attributable to minority interests, if any, in the stock and surplus of
subsidiaries, minus
(b) Total
Debt, minus
(c) the
net book value of all assets, after deducting any reserves applicable thereto,
which would be treated as intangible under GAAP, including, without limitation,
good will, trademarks, trade names, service marks, brand names, copyrights,
patents and unamortized debt discount and expense, organizational expenses
and
the excess of the equity in any Subsidiary over the cost of the investment
in
such Subsidiary.
“Tax
Event” means the receipt by the Company of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to or change (including any announced prospective change) in the laws or
any
regulations thereunder of the United States or any political subdivision
or
taxing authority thereof or therein or (b) any judicial decision or any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum or field service advice) or regulatory procedure, including
any notice or announcement of intent to adopt any such pronouncement or
procedure (an “Administrative Action”), regardless of whether such
judicial decision or Administrative Action is issued to or in connection
with a
proceeding involving the Company or the Trust and whether or not subject
to
review or appeal, which amendment, change, judicial decision or Administrative
Action is enacted, promulgated or announced, in each case, on or after the
date
of issuance of the Securities, there is more than an insubstantial risk that
(i)
the Trust is, or will be within ninety (90) days of the date of such opinion,
subject to United States federal income tax with respect to income received
or
accrued on the Securities, (ii) interest payable by the Company on the
Securities is not, or within ninety (90) days of the date of such opinion,
will
not be, deductible by the Company, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within ninety
(90) days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental
charges.
“Total
Debt”
means
the
total liabilities of the Company and its Subsidiaries that would be shown
as
liabilities on a consolidated balance sheet of the Company and its Subsidiaries
as of such time prepared in accordance with GAAP.
“Trust”
has the meaning specified in the first recital of this Indenture.
“Trust
Agreement” means the Amended and Restated Trust Agreement executed and
delivered by the Company, the Property Trustee, The Bank of New York (Delaware),
as Delaware Trustee and the Administrative Trustees named therein,
contemporaneously with the execution and delivery of this Indenture, for
the
benefit of the holders of the Trust Securities, as amended or supplemented
from
time to time.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument, solely in its capacity as such and not in its individual capacity,
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.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as
amended and as in effect on the date as of this Indenture.
“Trust
Securities” has the meaning specified in the first recital of this
Indenture.
SECTION
1.2. Compliance
Certificate and Opinions.
(a) Upon
any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officer’s Certificate stating that all conditions
precedent (including covenants compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in
the
opinion of such counsel all such conditions precedent (including covenants
compliance with which constitutes a condition precedent), if any, have been
complied with.
(b) Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificate provided pursuant
to
Section 10.3) shall include:
(i) a
statement by each individual signing such certificate or opinion that such
individual has read such covenant or condition and the definitions herein
relating thereto;
(ii) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions of such individual contained in such
certificate or opinion are based;
(iii) a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a
statement as to whether, in the opinion of such individual, such condition
or
covenant has been complied with.
SECTION
1.3. Forms
of Documents Delivered to Trustee.
(a) In
any
case where several matters are required to be certified by, or covered by
an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that
they
be so certified or covered by only one document, but one such Person may
certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any
certificate or opinion of an officer of the Company may be based, insofar
as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or after reasonable inquiry should
know,
that the certificate or opinion or representations with respect to matters
upon
which his or her certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates
to
factual matters, upon a certificate or opinion of, or representations by,
an
officer or officers of the Company stating that the information with respect
to
such factual matters is in the possession of the Company, unless such counsel
knows, or after reasonable inquiry should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
(c) Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(d) Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officer’s
Certificate, Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or omission shall
be
discovered therein, a new document or instrument may be substituted therefor
in
corrected form with the same force and effect as if originally received in
the
corrected form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall be
deemed
to have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is
substituted. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or instrument
shall nevertheless be the valid obligations of the Company entitled to the
benefits of this Indenture equally and ratably with all other Outstanding
Securities.
SECTION
1.4. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given to or taken by Holders may
be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent thereof duly appointed
in
writing; and, except as herein otherwise expressly provided, such action
shall
become effective when such instrument or instruments (including any appointment
of an agent) is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of
this
Indenture and conclusive in favor of the Trustee and the Company, if made
in the
manner provided in this Section 1.4.
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof. Where such
execution is by a Person acting in other than his or her individual capacity,
such certificate or affidavit shall also constitute sufficient proof of his
or
her authority. The fact and date of the execution by any Person of
any such instrument or writing, or the authority of the Person executing
the
same, may also be proved in any other manner that the Trustee deems sufficient
and in accordance with such reasonable rules as the Trustee may
determine.
(c) The
ownership of Securities shall be proved by the Securities Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind every future Holder of the
same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
(e) Without
limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Security may do so with regard to all or any part
of
the principal amount of such Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all or
any
part of such principal amount.
(f) Except
as
set forth in paragraph (g) of this Section 1.4, the Company may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted
by this
Indenture to be given, made or taken by Holders of Securities. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to
take
the relevant action, whether or not such Holders remain Holders after such
record date; provided, that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date (as defined in
Section 1.4(h)) by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Company from setting a new record date
for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with
no action by any Person be canceled and of no effect). Promptly after
any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing
and to
each Holder of Securities in the manner set forth in Section
1.6.
(g) The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making
of
(i) any Notice of Default, (ii) any declaration of acceleration or rescission
or
annulment thereof referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(b) or (iv) any direction
referred to in Section 5.12. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities on such
record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided, that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration
Date
by Holders of the requisite principal amount of Outstanding Securities on
such
record date. Nothing in this paragraph shall be construed to prevent
the Trustee from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person
be
canceled and of no effect). Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder
of
Securities in the manner set forth in Section 1.6.
(h) With
respect to any record date set pursuant to paragraph (f) or (g) of this
Section 1.4, the party hereto that sets such record date may designate
any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided, that no such
change shall be effective unless notice of the proposed new Expiration Date
is
given to the other party hereto in writing, and to each Holder of Securities
in
the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect
to any record date set pursuant to this Section 1.4, the party hereto
that set such record date shall be deemed to have initially designated the
ninetieth (90th) day
after such
record date as the Expiration Date with respect thereto, subject to its right
to
change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the one hundred eightieth (180th) day
after the
applicable record date.
SECTION
1.5. Notices,
Etc. to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver, Act of
Holders, or other document provided or permitted by this Indenture to be
made
upon, given or furnished to, or filed with:
(a) the
Trustee by any Holder, any holder of Preferred Securities or the Company
shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in
writing to or with and received by the Trustee at its Corporate Trust Office,
or
(b) the
Company by the Trustee, any Holder or any holder of Preferred Securities
shall
be sufficient for every purpose hereunder if in writing and mailed, first
class,
postage prepaid, to the Company addressed to it at 0000 Xxxx Xxxxxx Xxxx,
Xxx
Xxxxx, Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Chief Executive Officer
or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION
1.6. Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Holder affected by such
event
to the address of such Holder as it appears in the Securities Register, not
later than the latest date (if any), and not earlier than the earliest date
(if
any), prescribed for the giving of such notice. If, by reason of the
suspension of or irregularities in regular mail service or for any other
reason,
it shall be impossible or impracticable to mail notice of any event to Holders
when said notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory
to the
Trustee shall be deemed to be a sufficient giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to
mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of
such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity
of
any action taken in reliance upon such waiver.
SECTION
1.7. Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.
SECTION
1.8. Successors
and Assigns.
This
Indenture shall be binding upon and shall inure to the benefit of any successor
to the Company and the Trustee, including any successor by operation of
law. Except in connection with a transaction involving the Company
that is permitted under Article VIII and pursuant to which the assignee
agrees in writing to perform the Company’s obligations hereunder, the Company
shall not assign its obligations hereunder.
SECTION
1.9. Separability
Clause.
If
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, and there
shall
be deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
SECTION
1.10. Benefits
of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to
any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt, the Holders of the Securities and, to the extent
expressly provided in Sections 5.2, 5.8, 5.9, 5.11,
5.12, 5.13, 9.2 and 10.7, the holders
of Preferred
Securities, any benefit or any legal or equitable right, remedy or claim
under
this Indenture.
SECTION
1.11. Governing
Law.
This
Indenture and the rights and obligations of each of the Holders, the Company
and
the Trustee shall be construed and enforced in accordance with and governed
by
the laws of the State of New York without reference to its conflict of laws
provisions (other than section 5-1401 of the General Obligations
Law).
SECTION
1.12. Submission
to Jurisdiction.
ANY
LEGAL
ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS
OF THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS INDENTURE,
EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF
APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.
SECTION
1.13. Non-Business
Days.
If
any
Interest Payment Date, Redemption Date or Stated Maturity of any Security
shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest, premium, if any, or principal
or other amounts in respect of such Security shall not be made on such date,
but
shall be made on the next succeeding Business Day (and no interest shall
accrue
in respect of the amounts whose payment is so delayed for the period from
and
after such Interest Payment Date, Redemption Date or Stated Maturity, as
the
case may be, until such next succeeding Business Day) except that, if such
Business Day falls in the next succeeding calendar year, such payment shall
be
made on the immediately preceding Business Day, in each case with the same
force
and effect as if made on the Interest Payment Date or Redemption Date or
at the
Stated Maturity.
ARTICLE
II
Security
Forms
SECTION
2.1. Form
of Security.
Any
Security issued hereunder shall be in substantially the following
form:
Junior
Subordinated Note due 2020
No. _____________ $60,100,000.00
Vestin
Realty Mortgage II, Inc., a corporation organized and existing under the
laws of
Maryland (hereinafter called the “Company,” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to The Bank of New York Trust Company, National
Association, not in its individual capacity, but solely as Property Trustee
for
Vestin II Capital Trust I, or registered assigns, the principal sum of Sixty
Million One Hundred Thousand Dollars ($60,100,000.00) [if
the Security is a Global Security, then insert— or such other principal
amount represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the
Indenture] on July 30, 2020. The Company further
promises to pay interest on said principal sum from June 22, 2007, or from
the
most recent Interest Payment Date to which interest has been paid or duly
provided for, quarterly in arrears on January 30, April 30, July 30 and October
30 of each year, commencing July 30, 2007, or if any such day is not a Business
Day, on the next succeeding Business Day (and no interest shall accrue in
respect of the amounts whose payment is so delayed for the period from and
after
such Interest Payment Date until such next succeeding Business Day), except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each
case,
with the same force and effect as if made on the Interest Payment Date, at
a
fixed rate equal to 8.75% per annum through the interest payment date in
July
2012 (“Fixed Rate Period”) and thereafter at a
variable rate equal to LIBOR plus 3.50% per annum, together with Additional
Tax
Sums, if any, as provided in Section 10.5 of the Indenture, until the
principal hereof is paid or duly provided for or made available for payment;
provided, further, that any overdue principal, premium, if
any, or Additional Tax Sums and any overdue installment of interest shall
bear
Additional Interest at a fixed rate equal to 8.75% per annum during the Fixed
Rate Period and thereafter at a variable rate equal to LIBOR plus 3.50% per
annum (to the extent that the payment of such interest shall be legally
enforceable), compounded quarterly, from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable
on demand.
During
the Fixed Rate Period, the amount of interest payable shall be computed on
the
basis of a 360-day year of twelve 30-day months and the amount payable for
any
partial period shall be computed on the basis of the number of days elapsed
in a
360-day year of twelve 30-day months. Upon expiration of the Fixed
Rate Period, the amount of interest payable for any interest payment period
will
be computed on the basis of a 360-day year and the actual number of days
elapsed
in the relevant interest period. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date shall,
as
provided in the Indenture, be paid to the Person in whose name this Security
(or
one or more Predecessor Securities) is registered at the close of business
on
the Regular Record Date for such interest installment. Any such
interest not so punctually paid or duly provided for shall forthwith cease
to be
payable to the Holder on such Regular Record Date and may either be paid
to the
Person in whose name this Security (or one or more Predecessor Securities)
is
registered at the close of business on a Special Record Date for the payment
of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall
be
given to Holders of Securities not less than ten (10) days prior to such
Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities
may be
listed, and upon such notice as may be required by such exchange, all as
more
fully provided in the Indenture.
Payment
of principal of, premium, if any, and interest on this Security shall be
made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payments of
principal, premium, if any, and interest due at the Maturity of this Security
shall be made at the Place of Payment upon surrender of such Securities to
the
Paying Agent, and payments of interest shall be made, subject to such surrender
where applicable, by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in writing
to the
Paying Agent at least ten (10) Business Days prior to the date for payment
by
the Person entitled thereto unless proper written transfer instructions have
not
been received by the relevant record date, in which case such payments shall
be
made by check mailed to the address of such Person as such address shall
appear
in the Security Register. Notwithstanding the foregoing, so long as
the Holder of this Security is the Property Trustee, the payment of the
principal of (and premium, if any) and interest (including any overdue
installment of interest and Additional Tax Sums, if any) on this Security
will
be made at such place and to such account as may be designated by the Property
Trustee.
The
indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment
in
full of all Senior Debt, and this Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions,
(b)
authorizes and directs the Trustee on his or her behalf to take such actions
as
may be necessary or appropriate to effectuate the subordination so provided
and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Debt, whether now outstanding
or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
Unless
the certificate of authentication hereon has been executed by the Trustee
by
manual signature, this Security shall not be entitled to any benefit under
the
Indenture or be valid or obligatory for any purpose.
[FORM
OF REVERSE OF SECURITY]
This
Security is one of a duly authorized issue of securities of the Company (the
“Securities”) issued under the Junior Subordinated Indenture, dated as
of June 22, 2007 (the “Indenture”), between the Company and The Bank of
New York Trust Company, National Association, as Trustee (in such capacity,
the
“Trustee,” which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders
of
Senior Debt, the Holders of the Securities and the holders of the Preferred
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All
terms
used in this Security that are defined in the Indenture or in the Amended
and
Restated Trust Agreement, dated as of June 22, 2007 (as modified, amended
or
supplemented from time to time, the “Trust Agreement”), relating to
Vestin II Capital Trust I (the “Trust”) among the Company, as
Depositor, the Trustees named therein and the Holders from time to time of
the
Trust Securities issued pursuant thereto, shall have the meanings assigned
to
them in the Indenture or the Trust Agreement, as the case may be.
The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to
the
Trustee) on or after July 30, 2012 and subject to the terms and conditions
of
Article XI of the Indenture, redeem this Security in whole at any time or
in part from time to time at a Redemption Price equal to one hundred percent
(100%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date and, if such redemption
shall occur prior to the expiration of the Fixed Rate Period, Breakage Costs,
if
any, less Breakage Gains, if any.
In
addition, upon the occurrence and during the continuation of a Special Event,
the Company may, at its option, upon not less than thirty (30) days’ nor more
than sixty (60) days’ written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee), redeem this
Security, in whole but not in part, subject to the terms and conditions of
Article XI of the Indenture at a Redemption Price equal to one hundred
seven and one half percent (107.5%) of the principal amount hereof, together,
in
the case of any such redemption, with accrued interest, including any Additional
Interest, through but excluding the date fixed as the Redemption
Date.
Further,
the Company shall, upon receipt of a Change of Control Election with respect
to
a Change of Control which occurs after the Interest Payment Date in July
2012,
redeem the Securities in whole on a date no more than thirty (30) days after
receipt of the Change of Control Election, at a Redemption Price equal to
one
hundred percent (100%) of the principal amount thereof, together, in the
case of
any such redemption, with accrued and unpaid interest, including any Additional
Interest, to but excluding the date fixed as the Redemption Date and, if
such
redemption shall occur prior to the expiration of the Fixed Rate Period,
Breakage Costs, if any, less Breakage Gains, if any.
In
the
event of redemption of this Security in part only, a new Security or Securities
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof. If less than all the Securities
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than sixty (60) days prior to the Redemption Date by the Trustee
from
the Outstanding Securities not previously called for redemption, by such
method
as the Trustee shall deem fair and appropriate and which may provide for
the
selection for redemption of a portion of the principal amount of any
Security.
The
Indenture permits, with certain exceptions as therein provided, the Company
and
the Trustee at any time to enter into a supplemental indenture or indentures
for
the purpose of modifying in any manner the rights and obligations of the
Company
and of the Holders of the Securities, with the consent of the Holders of
not
less than a majority in principal amount of the Outstanding
Securities. The Indenture also contains provisions permitting Holders
of specified percentages in principal amount of the Securities, on behalf
of the
Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and
their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration
of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No
reference herein to the Indenture and no provision of this Security or of
the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium, if any, and
interest, including any Additional Interest (to the extent legally enforceable),
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As
provided in the Indenture and subject to certain limitations therein set
forth,
the transfer of this Security is restricted to transfers to (i) the Company,
(ii) “Qualified Institutional Buyers” (as defined in Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”)) who are also
“Qualified Purchasers” (as such term is defined in the Investment Company Act of
1940, as amended), (iii) certain Non-U.S. persons outside the United States
in
an offshore transaction in accordance with Regulation S under the Securities
Act
and in accordance with any other applicable law, (iv) pursuant to an effective
registration statement under the Securities Act or (v) pursuant to another
exemption from registration under the Securities Act and is registrable in
the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar and duly executed
by,
the Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Securities, of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The
Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name this Security is registered as the owner hereof for
all
purposes, whether or not this Security be overdue, and neither the Company,
the
Trustee nor any such agent shall be affected by notice to the
contrary.
The
Company and, by its acceptance of this Security or a beneficial interest
herein,
the Holder of, and any Person that acquires a beneficial interest in, this
Security agree that, for United States federal, state and local tax purposes,
it
is intended that this Security constitute indebtedness.
This
Security shall be construed and enforced in accordance with and governed
by the
laws of the State of New York, without reference to its conflict of laws
provisions (other than section 5-1401 of the General Obligations
Law).
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
on
this 22nd day
of June, 2007.
Vestin Realty Mortgage
II, Inc.
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By:____________________________________
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Name:
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Title:
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SECTION
2.2. Restricted
Legend.
(a) Any
Security issued hereunder shall bear a legend in substantially the following
form:
“[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”)
OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY 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 DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE
ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON
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.]
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH SECURITIES, AND ANY INTEREST
THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A OF THE
SECURITIES ACT) AND A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED), (III) TO CERTAIN NON-U.S.
PERSONS OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH
REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY OTHER
APPLICABLE LAW, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE
SECURITIES ACT, OR (V) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER
THE
SECURITIES ACT, AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SECURITIES
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE
SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY INTEREST
THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000
AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE
VOID
AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF
SUCH
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND
SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN
THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED
BY
ITS PURCHASE AND HOLDING THEREOF THAT (A) IT IS NOT AN “EMPLOYEE BENEFIT PLAN”
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, WHICH IS SUBJECT TO TITLE I
OF
ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE
OR
OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY
OTHER
PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE AND (B) ITS PURCHASE AND OWNERSHIP OF SUCH SECURITY
WILL
NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA
OR
SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).”
(b) The
above
legends shall not be removed from any Security unless there is delivered
to the
Company satisfactory evidence, which may include an Opinion of Counsel, as
may
be reasonably required to ensure that any future transfers thereof may be
made
without restriction under or violation of the provisions of the Securities
Act
and other applicable law. Upon provision of such satisfactory
evidence, the Company shall execute and deliver to the Trustee, and the Trustee
shall deliver, upon receipt of a Company Order directing it to do so, a Security
that does not bear the legend.
SECTION
2.3. Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificate of authentication shall be in substantially the following
form:
This
is
one of the Securities referred to in the within-mentioned
Indenture.
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Dated:
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By: __________________________________
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Authenticating
Agent
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By: __________________________________
Authorized
Signatory
SECTION
2.4. Temporary
Securities.
(a) Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive Securities
in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may
determine, as evidenced by their execution of such Securities.
(b) If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for that purpose without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate
and
deliver in exchange therefor one or more definitive Securities of any authorized
denominations having the same Original Issue Date and Stated Maturity and
having
the same terms as such temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION
2.5. Definitive
Securities.
The
Securities issued on the Original Issue Date shall be in definitive
form. The definitive Securities shall be printed, lithographed or
engraved, or produced by any combination of these methods, if required by
any
securities exchange on which the Securities may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities
may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
ARTICLE
III
The
Securities
SECTION
3.1. Payment
of Principal and Interest.
(a) The
unpaid principal amount of the Securities shall bear interest at a fixed
rate
equal to 8.75% per annum through the interest payment date in July 2012 and
thereafter at a variable rate of LIBOR plus 3.50% per annum until paid or
duly
provided for, such interest to accrue from the Original Issue Date or from
the
most recent Interest Payment Date to which interest has been paid or duly
provided for, and any overdue principal, premium, if any, or Additional Tax
Sums
and any overdue installment of interest shall bear Additional Interest at
the
rate equal to a fixed rate equal to 8.75% per annum through the interest
payment
date in July 2012 and thereafter at
a variable rate of LIBOR plus
3.50% per annum compounded quarterly from the dates such
amounts are due until they are paid or funds for the payment thereof are
made
available for payment. If the Company prepays the principal amount of
the Securities prior to the expiration of the Fixed Rate Period, the Company
shall pay to the applicable Holders all Breakage Costs, less Breakage Gains,
resulting from such prepayment.
(b) Interest
and Additional Interest on any Security that is payable, and is punctually
paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, except that interest and any Additional Interest payable on the
Stated
Maturity (or any date of principal repayment upon early maturity) of the
principal of a Security or on a Redemption Date shall be paid to the Person
to
whom principal is paid. The initial payment of interest on any
Security that is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Security.
(c) Any
interest on any Security that is due and payable, but is not timely paid
or duly
provided for, on any Interest Payment Date for Securities (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having
been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in paragraph (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment
of
such Defaulted Interest (a “Special Record Date”), which shall be fixed
in the following manner. At least thirty (30) days prior to the date
of the proposed payment, the Company shall notify the Trustee in writing
of the
amount of Defaulted Interest proposed to be paid on each Security and the
date
of the proposed payment, and at the same time the Company shall deposit with
the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in
respect of such Defaulted Interest or shall make arrangements satisfactory
to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest, which shall be not
more
than fifteen (15) days and not less than ten (10) days prior to the date
of the
proposed payment and not less than ten (10) days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at
the expense of the Company, shall cause notice of the proposed payment of
such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Security at the address of such
Holder as it appears in the Securities Register not less than ten (10) days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the
Securities (or their respective Predecessor Securities) are registered on
such
Special Record Date; or
(ii) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities may be listed, traded or quoted
and,
upon such notice as may be required by such exchange or automated quotation
system (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(d) Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates. During the Fixed Rate Period,
the amount of interest payable shall be computed on the basis of a 360-day
year
of twelve 30-day months and the amount payable for any partial period shall
be
computed on the basis of the number of days elapsed in a 360-day year of
twelve
30-day months. Upon expiration of the Fixed Rate Period, the amount
of interest payable for any interest payment period will be computed on the
basis of a 360-day year and the actual number of days elapsed in the relevant
interest period.
(e) Payment
of principal of, premium, if any, and interest on the Securities shall be
made
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private
debts. Payments of principal, premium, if any, and interest due at
the Maturity of such Securities shall be made at the Place of Payment upon
surrender of such Securities to the Paying Agent and payments of interest
shall
be made subject to such surrender where applicable, by wire transfer at such
place and to such account at a banking institution in the United States as
may
be designated in writing to the Paying Agent at least ten (10) Business Days
prior to the date for payment by the Person entitled thereto unless proper
written transfer instructions have not been received by the relevant record
date, in which case such payments shall be made by check mailed to the address
of such Person as such address shall appear in the Security
Register. Notwithstanding the foregoing, so long as the holder of
this Security is the Property Trustee, the payment of the principal of (and
premium, if any) and interest (including any overdue installment of interest
and
Additional Tax Sums, if any) on this Security will be made at such place
and to
such account as may be designated by the Property Trustee.
(f) The
parties hereto acknowledge and agree that the holders of the Preferred
Securities have certain rights to direct the Company to modify the Interest
Payment Dates and corresponding Redemption Date and Stated Maturity of the
Securities or a portion of the Securities pursuant to the Purchase
Agreement. In the event any such modifications are made to the
Securities or a portion of the Securities, appropriate changes to the form
of
Security set forth in Article II hereof shall be made prior to the
issuance and authentication of new or replacement Securities. Any
such modification of the Interest Payment Date and corresponding Redemption
Date
and Stated Maturity with respect to any Securities or tranche of Securities
shall not require or be subject to the consent of the Trustee.
(g) Subject
to the foregoing provisions of this Section 3.1, each Security delivered
under this Indenture upon transfer of or in exchange for or in lieu of any
other
Security shall carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.
SECTION
3.2. Denominations.
The
Securities shall be in registered form without coupons and shall be issuable
in
minimum denominations of $100,000 and any integral multiple of $1,000 in
excess
thereof.
SECTION
3.3. Execution,
Authentication, Delivery and Dating.
(a) At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities in an aggregate principal amount (including
all then Outstanding Securities) not in excess of Sixty Million One Hundred
Thousand Dollars ($60,100,000.00) executed by the Company to the Trustee
for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:
(i) a
copy of
any Board Resolution relating thereto; and
(ii) an
Opinion of Counsel stating that: (1) such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will
constitute, and the Indenture constitutes, valid and legally binding obligations
of the Company, each enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles; (2) the Securities have been duly authorized
and executed by the Company and have been delivered to the Trustee for
authentication in accordance with this Indenture; (3) the Securities are
not
required to be registered under the Securities Act; and (4) the Indenture
is not
required to be qualified under the Trust Indenture Act of 1939, as
amended.
(b) The
Securities shall be executed on behalf of the Company by its Chairman of
the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. The signature of any of
these officers on the Securities may be manual or
facsimile. Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind
the Company, notwithstanding that such individuals or any of them have ceased
to
hold such offices prior to the authentication and delivery of such Securities
or
did not hold such offices at the date of such Securities.
(c) No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed
by the
Trustee by the manual signature of one of its authorized signatories, and
such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.8, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated
and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
(d) Each
Security shall be dated the date of its authentication.
SECTION
3.4. Global
Securities.
(a) Upon
the
election of the Holder after the Original Issue Date, which election need
not be
in writing, the Securities owned by such Holder shall be issued in the form
of
one or more Global Securities registered in the name of the Depositary or
its
nominee. Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or
a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged
in
whole or in part for registered Securities, and no transfer of a Global Security
in whole or in part may be registered in the name of any Person other than
the
Depositary for such Global Security or a nominee thereof, unless (i) such
Depositary advises the Trustee and the Company in writing that such Depositary
is no longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Security, and no qualified successor
is
appointed by the Company within ninety (90) days of receipt by the Company
of
such notice, (ii) such Depositary ceases to be a clearing agency registered
under the Exchange Act and no successor is appointed by the Company within
ninety (90) days after obtaining knowledge of such event, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv)
an
Event of Default shall have occurred and be continuing. Upon the
occurrence of any event specified in clause (i), (ii), (iii) or (iv) above,
the
Trustee shall notify the Depositary and instruct the Depositary to notify
all
owners of beneficial interests in such Global Security of the occurrence
of such
event and of the availability of Securities to such owners of beneficial
interests requesting the same. The Trustee may conclusively rely, and
be protected in relying, upon the written identification of the owners of
beneficial interests furnished by the Depositary, and shall not be liable
for
any delay resulting from a delay by the Depositary. Upon the issuance
of such Securities and the registration in the Securities Register of such
Securities in the names of the Holders of the beneficial interests therein,
the
Trustees shall recognize such holders of beneficial interests as
Holders.
(c) If
any
Global Security is to be exchanged for other Securities or canceled in part,
or
if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall
be
so surrendered for exchange or cancellation as provided in this Article
III or (ii) the principal amount thereof shall be reduced or increased by
an
amount equal to (x) the portion thereof to be so exchanged or canceled, or
(y)
the principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment
made
on the records of the Securities Registrar, whereupon the Trustee, in accordance
with the Applicable Depositary Procedures, shall instruct the Depositary
or its
authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security
by the Depositary, accompanied by registration instructions, the Company
shall
execute and the Trustee shall authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) in accordance
with
the instructions of the Depositary. The Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely
on, and
shall be fully protected in relying on, such instructions.
(d) Every
Security authenticated and delivered upon registration of transfer of, or
in
exchange for or in lieu of, a Global Security or any portion thereof shall
be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) Securities
distributed to holders of Book-Entry Preferred Securities (as defined in
the
applicable Trust Agreement) upon the dissolution of the Trust shall be
distributed in the form of one or more Global Securities registered in the
name
of a Depositary or its nominee, and deposited with the Securities Registrar,
as
custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may
direct). Securities distributed to holders of Preferred Securities
other than Book-Entry Preferred Securities upon the dissolution of the Trust
shall not be issued in the form of a Global Security or any other form intended
to facilitate book-entry trading in beneficial interests in such
Securities.
(f) The
Depositary or its nominee, as the registered owner of a Global Security,
shall
be the Holder of such Global Security for all purposes under this Indenture
and
the Securities, and owners of beneficial interests in a Global Security shall
hold such interests pursuant to the Applicable Depositary
Procedures. Accordingly, any such owner’s beneficial interest in a
Global Security shall be shown only on, and the transfer of such interest
shall
be effected only through, records maintained by the Depositary or its nominee
or
its Depositary Participants. The Securities Registrar and the Trustee
shall be entitled to deal with the Depositary for all purposes of this Indenture
relating to a Global Security (including the payment of principal and interest
thereon and the giving of instructions or directions by owners of beneficial
interests therein and the giving of notices) as the sole Holder of the Security
and shall have no obligations to the owners of beneficial interests
therein. Neither the Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the
Depositary.
(g) The
rights of owners of beneficial interests in a Global Security shall be exercised
only through the Depositary and shall be limited to those established by
law and
agreements between such owners and the Depositary and/or its Depositary
Participants.
(h) No
holder
of any beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from
giving effect to any written certification, proxy or other authorization
furnished by a Depositary or impair, as between a Depositary and such holders
of
beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary (or its nominee) as Holder of any
Security.
SECTION
3.5. Registration,
Transfer and Exchange Generally.
(a) The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
“Securities Register”) in which the registrar and transfer agent with
respect to the Securities (the “Securities Registrar”), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Securities and of transfers and exchanges of Securities. The
Trustee shall at all times also be the Securities Registrar. The
provisions of Article VI shall apply to the Trustee in its role as
Securities Registrar.
(b) Subject
to compliance with Section 2.2(b), upon surrender for registration of
transfer of any Security at the offices or agencies of the Company designated
for that purpose the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one
or
more new Securities of any authorized denominations of like tenor and aggregate
principal amount.
(c) At
the
option of the Holder, Securities may be exchanged for other Securities of
any
authorized denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to
receive.
(d) All
Securities issued upon any transfer or exchange of Securities shall be the
valid
obligations of the Company, evidencing the same debt, and entitled to the
same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
(e) Every
Security presented or surrendered for transfer or exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or such Holder’s attorney duly
authorized in writing.
(f) No
service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
(g) Neither
the Company nor the Trustee shall be required pursuant to the provisions
of this
Section 3.5: (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business
fifteen (15) days before the day of selection for redemption of Securities
pursuant to Article XI and ending at the close of business on the day of
mailing of the notice of redemption or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except,
in
the case of any such Security to be redeemed in part, any portion thereof
not to
be redeemed.
(h) The
Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration of transfer or
exchange. The Company initially designates the Corporate Trust Office
as its office and agency for such purposes. The Company shall give
prompt written notice to the Trustee and to the Holders of any change in
the
location of any such office or agency.
(i) The
Securities may only be transferred to (i) the Company, (ii) a “qualified
institutional buyer” (as defined in Rule 144A of the Securities Act) who is also
a “Qualified Purchaser” as such term is defined in Section 2(a)(51) of the
Investment Company Act, (iii) certain non-U.S. persons outside the United
States
in an offshore transaction in accordance with Regulation S under the Securities
Act and in accordance with any other applicable law, (iv) pursuant to an
effective registration statement under the Securities Act or (v) pursuant
to
another exemption form registration under the Securities Act.
(j) Neither
the Trustee nor the Securities Registrar shall be responsible for ascertaining
whether any transfer hereunder complies with the registration provisions
of or
any exemptions from the Securities Act, applicable state securities laws
or the
applicable laws of any other jurisdiction, ERISA, the Code, or the Investment
Company Act; provided, that if a certificate is specifically required
by the express terms of this Section 3.5 to be delivered to the Trustee
or the Securities Registrar by a Holder or transferee of a Security, the
Trustee
and the Securities Registrar shall be under a duty to receive and examine
the
same to determine whether or not the certificate substantially conforms on
its
face to the requirements of this Indenture and shall promptly notify the
party
delivering the same if such certificate does not comply with such
terms.
SECTION
3.6. Mutilated,
Destroyed, Lost and Stolen Securities.
(a) If
any
mutilated Security is surrendered to the Trustee together with such security
or
indemnity as may be required by the Trustee to save the Company and the Trustee
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and aggregate
principal amount and bearing a number not contemporaneously
outstanding.
(b) If
there
shall be delivered to the Trustee (i) evidence to its satisfaction of the
destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by it to save each of the Company and the Trustee 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 written request the Trustee shall authenticate and deliver,
in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor
and
aggregate principal amount as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
(c) If
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.
(d) Upon
the
issuance of any new Security under this Section 3.6, 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.
(e) Every
new
Security issued pursuant to this Section 3.6 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be
entitled to all the benefits of this Indenture equally and proportionately
with
any and all other Securities duly issued hereunder.
(f) The
provisions of this Section 3.6 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
3.7. Persons
Deemed Owners.
The
Company, the Trustee and any agent of the Company or the Trustee shall treat
the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any interest on
such
Security and for all other purposes whatsoever, and neither the Company,
the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice
to the contrary.
SECTION
3.8. Cancellation.
All
Securities surrendered for payment, redemption, transfer or exchange shall,
if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Securities surrendered directly to the Trustee
for
any such purpose shall be promptly canceled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired
in any
manner whatsoever, and all Securities so delivered shall be promptly canceled
by
the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section 3.8,
except as expressly permitted by this Indenture. All canceled
Securities shall be retained or disposed of by the Trustee in accordance
with
its customary practices and the Trustee shall deliver to the Company a
certificate of such disposition.
SECTION
3.9. Reserved.
SECTION
3.10. Reserved..
SECTION
3.11. Agreed
Tax Treatment.
Each
Security issued hereunder shall provide that the Company and, by its acceptance
or acquisition of a Security or a beneficial interest therein, the Holder
of,
and any Person that acquires a direct or indirect beneficial interest in,
such
Security, intend and agree to treat such Security as indebtedness of the
Company
for United States Federal, state and local tax purposes and to treat the
Preferred Securities (including but not limited to all payments and proceeds
with respect to the Preferred Securities) as an undivided beneficial ownership
interest in the Securities (and any other Trust property) (and payments and
proceeds therefrom, respectively) for United States Federal, state and local
tax
purposes. The provisions of this Indenture shall be interpreted to
further this intention and agreement of the parties.
SECTION
3.12. 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 and other similar or related materials as a convenience to Holders;
provided, that any such notice or other materials 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 redemption or other materials
and that reliance may be placed only on the other identification numbers
printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
ARTICLE
IV
Satisfaction
and Discharge
SECTION
4.1. Satisfaction
and Discharge of Indenture.
This
Indenture shall, upon Company Request, cease to be of further effect (except
as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for and as otherwise provided in this Section
4.1) and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all
Securities theretofore authenticated and delivered (other than (A) Securities
that have been mutilated, destroyed, lost or stolen and that have been replaced
or paid as provided in Section 3.6 and (B) Securities for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by
the Company and thereafter repaid to the Company or discharged from such
trust
as provided in Section 10.2) have been delivered to the Trustee for
cancellation; or
(ii) all
such
Securities not theretofore delivered to the Trustee for
cancellation
(A) have
become due and payable, or
(B) will
become due and payable at their Stated Maturity within one year of the date
of
deposit, or
(C) 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,
and
the
Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited
or
caused to be deposited with the Trustee as trust funds in trust for such
purpose
(x) an amount in the currency or currencies in which the Securities are payable,
(y) Government Obligations which through the scheduled payment of principal
and
interest in respect thereof in accordance with their terms will provide,
not
later than the due date of any payment, money in an amount or (z) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness on
such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest (including any Additional Interest)
to
the date of such deposit (in the case of Securities that have become due
and
payable) or to the Stated Maturity (or any date of principal repayment upon
early maturity) or Redemption Date, as the case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by
the
Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent 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 6.6, the obligations of the Company to any
Authenticating Agent under Section 6.11 and, if money shall have been
deposited with the Trustee pursuant to subclause (a)(ii) of this Section
4.1, the obligations of the Trustee under Section 4.2 and Section
10.2(d) shall survive.
SECTION
4.2. Application
of Trust Money.
Subject
to the provisions of Section 10.2(d), all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities and this Indenture,
to the payment in accordance with Section 3.1, either directly or through
any Paying Agent as the Trustee may determine, to the Persons entitled thereto,
of the principal and any premium and interest (including any Additional
Interest) for the payment of which such money or obligations have been deposited
with or received by the Trustee. Moneys held by the Trustee under
this Section 4.2 shall not be subject to the claims of holders of Senior
Debt under Article XII.
ARTICLE
V
Remedies
SECTION
5.1. Events
of Default.
“Event
of Default” means, wherever used herein with respect to the Securities, any
one of the following events (whatever the reason for such Event of Default
and
whether it shall be voluntary or involuntary or be effected by operation
of law
or pursuant to any judgment, decree or order of any court or any order, rule
or
regulation of any administrative or governmental body):
(a) default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance
of
such default for a period of thirty (30) days; or
(b) default
in the payment of the principal of or any premium on any Security at its
Maturity; or
(c) (i)
default in the performance, or breach, of any covenant of the Company under
Section 10.9 of this Indenture and continuance of such default or breach
for a period of thirty (30) 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 twenty-five percent (25%) in aggregate principal
amount of the Outstanding Securities 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 (ii) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a default
in
the performance, or breach, of any covenant contained in Section 10.9 of
this Indenture, which shall be treated as described in clause (i) of this
Section 5.1(c)) or the Purchase Agreement and continuance of such default
or breach for a period of forty-five (45) 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 twenty-five percent (25%) in
aggregate principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder;
(d) the
entry
by a court having jurisdiction in the premises of a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the
Company or of any substantial part of its property, or ordering the winding
up
or liquidation of its affairs, and the continuance of any such decree or
order
for relief or any such other decree or order unstayed and in effect for a
period
of sixty (60) consecutive days;
(e) the
institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy
or
insolvency proceedings against it, or the filing by the Company of a petition
or
answer or consent seeking reorganization or relief under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law, or
the
consent by it to the filing of such petition or to the appointment of or
taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors,
or
the admission by it in writing of its inability to pay its debts generally
as
they become due and its willingness to be adjudicated a bankrupt or insolvent,
or the taking of corporate action by the Company in furtherance of any such
action; or
(f) the
Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence, except in connection with
(1) the distribution of the Securities to holders of the Preferred
Securities in liquidation of their interests in the Trust, (2) the
redemption of all of the outstanding Preferred Securities or (3) certain
mergers, consolidations or amalgamations, each as and to the extent permitted
by
the Trust Agreement.
SECTION
5.2. Acceleration
of Maturity; Rescission and Annulment.
(a) If
an
Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than twenty-five percent (25%) in aggregate
principal amount of the Outstanding Securities may declare the principal
amount
of all the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), provided, that
if, upon an Event of Default, the Trustee or the Holders of not less than
twenty-five percent (25%) in principal amount of the Outstanding Securities
fail
to declare the principal of all the Outstanding Securities to be immediately
due
and payable, the holders of at least twenty-five percent (25%) in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have
the
right to make such declaration by a notice in writing to the Property Trustee,
the Company and the Trustee; and upon any such declaration the principal
amount
of and the accrued interest (including any Additional Interest) on all the
Securities shall become immediately due and payable.
(b) At
any
time after such a declaration of acceleration with respect to Securities
has
been made and before a judgment or decree for payment of the money due has
been
obtained by the Trustee as hereinafter provided in this Article V, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Indenture Trustee, or the holders of
a
majority in aggregate Liquidation Amount of the Preferred Securities, by
written
notice to the Property Trustee, the Company and the Trustee, may rescind
and
annul such declaration and its consequences if:
(i) the
Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all
overdue installments of interest on all Securities,
(B) any
accrued Additional Interest on all Securities,
(C) the
principal of and any premium on any Securities that have become due otherwise
than by such declaration of acceleration and interest (including any Additional
Interest) thereon at the rate borne by the Securities, and
(D) all
unpaid taxes and other sums paid or advanced by the Trustee hereunder and
the
reasonable compensation, expenses, disbursements and advances of the Trustee,
the Property Trustee and their agents and counsel; and
(ii) the
Trustee has determined that all Events of Default with respect to Securities,
other than the non-payment of the principal of Securities that has become
due
solely by such acceleration, have been cured or waived as provided in Section
5.13;
provided,
that if the Holders of such Securities fail to annul such declaration and
waive
such default, the holders of not less than a majority in aggregate Liquidation
Amount of the Preferred Securities then outstanding shall also have the right
to
rescind and annul such declaration and its consequences by written notice
to the
Property Trustee, the Company and the Trustee, subject to the satisfaction
of
the conditions set forth in paragraph (b) of this Section
5.2. No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION
5.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that if:
(i) a
default
shall occur in respect of the payment of any installment of interest (including
any Additional Interest) on any Security when such interest becomes due and
payable and such default continues for a period of thirty (30) days,
or
(ii) a
default
shall occur in respect of the payment of the principal of and any premium
on any
Security at the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit
of
the Holders of such Securities, the whole amount then due and payable on
such
Securities for principal and any premium and interest (including any Additional
Interest) and, in addition thereto, all amounts owing the Trustee under
Section 6.6.
(b) 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, and (subject
to the
Trustee’s rights under this Indenture) 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 decreed to
be
payable in the manner provided by law out of the property of the Company
or any
other obligor upon the Securities, wherever situated.
(c) If
an
Event of Default with respect to any Securities occurs and is continuing,
the
Trustee may in its discretion, if no direction by the applicable percentage
of
Holders of the Outstanding Securities is received by the Trustee, proceed
to
protect and enforce its rights and the rights of the Holders of such Securities
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION
5.4. Trustee
May File Proofs of Claim.
In
case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative
to
the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such
proceeding or otherwise, to take any and all actions authorized hereunder
in
order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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 first 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 owing the Trustee,
any
predecessor Trustee and other Persons under Section 6.6.
SECTION
5.5. Trustee
May Enforce Claim Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto,
and any
such proceeding instituted by the Trustee shall be brought in its own name
as
trustee of an express trust, and any recovery of judgment shall, subject
to
Article XII and after provision for the payment of all the amounts owing
the Trustee, any predecessor Trustee and other Persons under Section 6.6,
be for the ratable benefit of the Holders of the Securities in respect of
which
such judgment has been recovered.
SECTION
5.6. Application
of Money Collected.
Any
money
or property collected or to be applied by the Trustee with respect to the
Securities pursuant to this Article V 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 any premium
or
interest (including any Additional 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, any predecessor Trustee and other
Persons under Section 6.6;
SECOND: To
the payment of all Senior Debt of the Company if and to the extent required
by
Article XII;
THIRD: Subject
to Article XII, to the payment of the amounts then due and unpaid upon
the Securities for principal and any premium and interest (including any
Additional Interest) 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 the Securities for principal
and any
premium and interest (including any Additional Interest), respectively;
and
FOURTH: The
balance, if any, to the Person or Persons entitled thereto.
SECTION
5.7. Limitation
on Suits.
Subject
to Section 5.8, no Holder of any Securities shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or for the appointment of a custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) 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;
(b) the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities 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 reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d) the
Trustee after its receipt of such notice, request and offer of indemnity
has
failed to institute any such proceeding for sixty (60) days; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities;
it
being
understood and intended that no one or more of such Holders shall have any
right
in any manner whatever by virtue of, or by availing itself of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Securities, 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.
SECTION
5.8. Unconditional
Right of Holders to Receive Principal, Premium, if any, and Interest; Direct
Action by Holders of Preferred Securities.
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 on such Security at its Maturity and payment of interest
(including any Additional Interest) on such Security when due and payable
and to
institute suit for the enforcement of any such payment, and such right shall
not
be impaired without the consent of such Holder. Any registered holder
of the Preferred Securities shall have the right, upon the occurrence of
an
Event of Default described in Section 5.1(a) or Section 5.1(b), to
institute a suit directly against the Company for enforcement of payment
to such
holder of principal of and any premium and interest (including any Additional
Interest) on the Securities having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities held by such holder.
SECTION
5.9. Restoration
of Rights and Remedies.
If
the
Trustee, any Holder or any holder of Preferred Securities 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, such Holder or such holder of Preferred
Securities, then and in every such case the Company, the Trustee, such Holders
and such holder of Preferred Securities shall, subject to any determination
in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee,
such
Holder and such holder of Preferred Securities shall continue as though no
such
proceeding had been instituted.
SECTION
5.10. Rights
and Remedies Cumulative.
Except
as
otherwise provided in Section 3.6(f), no right or remedy herein conferred
upon or reserved to the Trustee or 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 prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION
5.11. Delay
or Omission Not Waiver.
No
delay
or omission of the Trustee, any Holder of any Securities or any holder of
any
Preferred Security 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 V or by law to the Trustee or to the Holders and
the right and remedy given to the holders of Preferred Securities by Section
5.8 may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee, the Holders or the holders of Preferred Securities,
as the case may be.
SECTION
5.12. Control
by Holders.
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities (or, as the case may be, the holders of a majority
in
aggregate Liquidation Amount of Preferred Securities) shall have the right
to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided, that:
(a) such
direction shall not be in conflict with any rule of law or with this
Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction, and
(c) subject
to the provisions of Section 6.2, the Trustee shall have the right to
decline to follow such direction if a Responsible Officer or Officers of
the
Trustee shall, in good faith, reasonably determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any
such
direction or would involve the Trustee in personal liability.
SECTION
5.13. Waiver
of Past Defaults.
(a) The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities or the holders of not less than a majority in aggregate
Liquidation Amount of the Preferred Securities may waive any past Event of
Default hereunder and its consequences except an Event of Default:
(i) in
the
payment of the principal of or any premium or interest (including any Additional
Interest) on any Outstanding Security (unless such Event of Default has been
cured and the Company has paid to or deposited with the Trustee a sum sufficient
to pay all installments of interest (including any Additional Interest) due
and
past due and all principal of and any premium on all Securities due otherwise
than by acceleration), or
(ii) in
respect of a covenant or provision hereof that under Article IX cannot be
modified or amended without the consent of each Holder of any Outstanding
Security.
(b) Any
such
waiver shall be deemed to be on behalf of the Holders of all the Outstanding
Securities or, in the case of a waiver by holders of Preferred Securities
issued
by such Trust, by all holders of Preferred Securities.
(c) Upon
any
such waiver, such Event of 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 Event
of
Default or impair any right consequent thereon.
SECTION
5.14. Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his or
her
acceptance thereof shall be deemed to have agreed, that any court may in
its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but
the provisions of this Section 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group
of
Holders, holding in the aggregate more than ten percent (10%) in aggregate
principal amount of the Outstanding Securities, or to any suit instituted
by any
Holder for the enforcement of the payment of the principal of or any premium
on
the Security after the Stated Maturity or any interest (including any Additional
Interest) on any Security after it is due and payable.
SECTION
5.15. Waiver
of Usury, Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will
not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the
benefit or advantage of, any usury, stay or extension law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution
of any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
ARTICLE
VI
The
Trustee
SECTION
6.1. Corporate
Trustee Required.
There
shall at all times be a Trustee hereunder with respect to the
Securities. The Trustee shall be a corporation or national banking
association organized and doing business under the laws of the United States
or
of any state thereof, authorized to exercise corporate trust powers, having
a
combined capital and surplus of at least $50,000,000, subject to supervision
or
examination by Federal or state authority and having an office within the
United
States. If such entity publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then, for the purposes of this Section 6.1, the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.1, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VI.
SECTION
6.2. Certain
Duties and Responsibilities.
Except
during the continuance of an Event of Default:
(i) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to
the
requirements of this Indenture; provided, that in the case of any such
certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine
the
same to determine whether or not they substantially conform on their face
to the
requirements of this Indenture.
(b) If
an
Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall, prior to the receipt of directions, if any, from the Holders
of
at least a majority in aggregate principal amount of the Outstanding Securities
(or, if applicable, from the holders of at least a majority in aggregate
Liquidation Amount of Preferred Securities), exercise such of the rights
and
powers vested in it by this Indenture, and use the same degree of care and
skill
in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
(c) Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the
performance of any of its duties hereunder, or in the exercise of any of
its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is
not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject
to the
provisions of this Section 6.2. To the extent that, at law or
in equity, the Trustee has duties and liabilities relating to the Holders,
the
Trustee shall not be liable to any Holder or any holder of Preferred Securities
for the Trustee’s good faith reliance on the provisions of this
Indenture. The provisions of this Indenture, to the extent that they
restrict the duties and liabilities of the Trustee otherwise existing at
law or
in equity, are agreed by the Company and the Holders and the holders of
Preferred Securities to replace such other duties and liabilities of the
Trustee.
(d) No
provisions of this Indenture shall be construed to relieve the Trustee from
liability with respect to matters that are within the authority of the Trustee
under this Indenture for its own negligent action, negligent failure to act
or
willful misconduct, except that:
(i) the
Trustee shall not be liable for any error or judgment made in good faith
by an
authorized officer of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(ii) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders
of at
least a majority in aggregate principal amount of the Outstanding Securities
(or, as the case may be, the holders of a majority in aggregate Liquidation
Amount of Preferred Securities); and
(iii) the
Trustee shall be under no liability for interest on any money received by
it
hereunder except as otherwise agreed in writing with the Company and money
held
by the Trustee in trust hereunder need not be segregated from other funds
except
to the extent required by law.
(e) If
at any
time the Trustee hereunder is not the same Person as the Property Trustee
under
the Trust Agreement:
(i) whenever
a reference is made herein to the dissolution, termination or liquidation
of the
Trust, the Trustee shall be entitled to assume that no such dissolution,
termination, or liquidation has occurred so long as the Securities are or
continue to be registered in the name of such Property Trustee, and the Trustee
shall be charged with notice or knowledge of such dissolution, termination
or
liquidation only upon written notice thereof given to the Trustee by the
Depositor under the Trust Agreement; and
(ii) the
Trustee shall not be charged with notice or knowledge that any Person is
a
holder of Preferred Securities or Common Securities issued by the Trust or
whether any group of holders of Preferred Securities constitutes any specified
percentage of all outstanding Preferred Securities for any purpose under
this
Indenture, unless and until the Trustee is furnished with a list of holders
by
such Property Trustee and the aggregate Liquidation Amount of the Preferred
Securities then outstanding. The Trustee may conclusively rely and
shall be protected in relying on such list.
(f) Notwithstanding
Section 1.10, the Trustee shall not, and shall not be deemed to, owe any
fiduciary duty to the holders of any of the Trust Securities issued by the
Trust
and shall not be liable to any such holder (other than for the willful
misconduct or negligence of the Trustee) if the Trustee in good faith (i)
pays
over or distributes to a registered Holder of the Securities or to the Company
or to any other Person, cash, property or securities to which such holder
of
such Trust Securities shall be entitled or (ii) takes any action or omits
to
take any action at the request of the Holder of such
Securities. Nothing in this paragraph shall affect the obligation of
any other such Person to hold such payment for the benefit of, and to pay
such
amount over to, such holders of Preferred Securities or Common Securities
or
their representatives.
SECTION
6.3. Notice
of Defaults.
Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless
such
default shall have been cured or waived; provided, that except in the
case of a default in the payment of the principal of or any premium or interest
on any Securities, the Trustee shall be fully protected in withholding the
notice if and so long as the board of directors, the executive committee
or a
trust committee of directors and/or Responsible Officers of the Trustee in
good
faith determines that withholding the notice is in the interest of holders
of
Securities; and provided, further, that in the case of any default of
the character specified in Section 5.1(c), no such notice to Holders
shall be given until at least thirty (30) days after the occurrence
thereof. For the purpose of this Section 6.3, the term
“default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
SECTION
6.4. Certain
Rights of Trustee.
Subject
to the provisions of Section 6.2:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note or other
paper
or document believed by it to be genuine and to have been signed or presented
by
the proper party or parties;
(b) if
(i) in
performing its duties under this Indenture the Trustee is required to decide
between alternative courses of action, (ii) in construing any of the provisions
of this Indenture the Trustee finds ambiguous or inconsistent with any other
provisions contained herein or (iii) the Trustee is unsure of the application
of
any provision of this Indenture, then, except as to any matter as to which
the
Holders are entitled to decide under the terms of this Indenture, the Trustee
shall deliver a notice to the Company requesting the Company’s written
instruction as to the course of action to be taken and the Trustee shall
take
such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided, that if the Trustee does not receive such instructions from
the Company within ten Business Days after it has delivered such notice or
such
reasonably shorter period of time set forth in such notice, the Trustee may,
but
shall be under no duty to, take such action, or refrain from taking such
action,
as the Trustee shall deem advisable and in the best interests of the Holders,
in
which event the Trustee shall have no liability except for its own negligence,
bad faith or willful misconduct;
(c) any
request or direction of the Company shall be sufficiently evidenced by a
Company
Request or Company Order and any resolution of the Board of Directors may
be
sufficiently evidenced by a Board Resolution;
(d) the
Trustee may consult with counsel (which counsel may be counsel to the Trustee,
the Company or any of its Affiliates, and may include any of its employees)
and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted
by it hereunder in good faith and in reliance thereon;
(e) 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
or any holder of Preferred Securities pursuant to this Indenture, unless
such
Holders (or such holders of Preferred Securities) shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction,
including reasonable advances as may be requested by the Trustee;
(f) 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, indenture, note or other
paper
or document, but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such inquiry or investigation, it shall be entitled
to
examine the books, records and premises of the Company, personally or by
agent
or attorney;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents, attorneys, custodians
or
nominees and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(h) whenever
in the administration of this Indenture the Trustee shall deem it desirable
to
receive instructions with respect to enforcing any remedy or right or taking
any
other action with respect to enforcing any remedy or right hereunder, the
Trustees (i) may request instructions from the Holders (which instructions
may
only be given by the Holders of the same aggregate principal amount of
Outstanding Securities as would be entitled to direct the Trustee under this
Indenture in respect of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such action until such instructions
are
received and (iii) shall be protected in acting in accordance with such
instructions;
(i) except
as
otherwise expressly provided by this Indenture, the Trustee shall not be
under
any obligation to take any action that is discretionary under the provisions
of
this Indenture;
(j) without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with any
bankruptcy, insolvency or other proceeding referred to in clauses (d) or
(e) of
the definition of Event of Default, such expenses (including legal fees and
expenses of its agents and counsel) and the compensation for such services
are
intended to constitute expenses of administration under any bankruptcy laws
or
law relating to creditors rights generally;
(k) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting
any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon
an Officer’s Certificate addressing such matter, which, upon receipt of such
request, shall be promptly delivered by the Company;
(l) the
Trustee shall not be charged with knowledge of any Event of Default unless
either (i) a Responsible Officer of the Trustee shall have actual knowledge
or
(ii) the Trustee shall have received written notice thereof from the Company
or
a Holder; and
(m) in
the
event that the Trustee is also acting as Paying Agent, Authenticating Agent
or
Securities Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article VI shall also be afforded such Paying
Agent, Authenticating Agent, or Securities Registrar.
SECTION
6.5. May
Hold Securities.
The
Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar
or
any other agent of the Company, in its individual or any other capacity,
may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other
agent.
SECTION
6.6. Compensation;
Reimbursement; Indemnity.
(a) The
Company agrees:
(i) to
pay to
the Trustee from time to time reasonable compensation for all services rendered
by it hereunder in such amounts as the Company and the Trustee shall agree
from
time to time (which compensation shall not be limited by any provision of
law in
regard to the compensation of a trustee of an express trust);
(ii) to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with
any provision of this Indenture (including the reasonable compensation and
the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith
or
willful misconduct; and
(iii) to
the
fullest extent permitted by applicable law, to indemnify the Trustee and
its
Affiliates, and their officers, directors, shareholders, agents, representatives
and employees for, and to hold them harmless against, any loss, damage,
liability, tax (other than income, franchise or other taxes imposed on amounts
paid pursuant to (i) or (ii) hereof), penalty, expense or claim of any kind
or
nature whatsoever incurred without negligence, bad faith or willful misconduct
on its part arising out of or in connection with the acceptance or
administration of this trust or the performance of the Trustee’s duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any
of its
powers or duties hereunder.
(b) To
secure
the Company’s payment obligations in this Section 6.6, the Company hereby
grants and pledges to the Trustee and the Trustee shall have a lien prior
to the
Securities on all money or property held or collected by the Trustee, other
than
money or property held in trust to pay principal and interest on particular
Securities. Such lien shall survive the satisfaction and discharge of
this Indenture or the resignation or removal of the Trustee.
(c) The
obligations of the Company under this Section 6.6 shall survive the
satisfaction and discharge of this Indenture and the earlier resignation
or
removal of the Trustee.
(d) In
no
event shall the Trustee be liable for any indirect, special, punitive or
consequential 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 and regardless of the form of action.
(e) In
no
event shall the Trustee be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared
or
undeclared), terrorism, fire, riot, embargo, government action, including
any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
SECTION
6.7. Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article VI shall become effective until the acceptance
of appointment by the successor Trustee under Section 6.8.
(b) The
Trustee may resign at any time by giving at least thirty (30) days’ prior
written notice thereof to the Company.
(c) Unless
an
Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution. If an Event
of Default shall have occurred and be continuing, the Trustee may be removed
by
Act of the Holders of a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the
Company.
(d) If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any reason, at a time when no Event
of
Default shall have occurred and be continuing, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements
of Section 6.8. If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Trustee
for any reason, at a time when an Event of Default shall have occurred and
be
continuing, the Holders, by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities, shall promptly appoint a
successor Trustee, and such successor Trustee and the retiring Trustee shall
comply with the applicable requirements of Section 6.8. If no
successor Trustee shall have been so appointed by the Company or the Holders
and
accepted appointment within sixty (60) days after the giving of a notice
of
resignation by the Trustee or the removal of the Trustee in the manner required
by Section 6.8, any Holder who has been a bona fide Holder of a Security
for at least six months (or, if the Securities have been Outstanding for
less
than six (6) months, the entire period of such lesser time) may, on behalf
of
such Holder and all others similarly situated, and any resigning Trustee
may, at
the expense of the Company, petition any court of competent jurisdiction
for the
appointment of a successor Trustee.
(e) The
Company shall give notice to all Holders in the manner provided in Section
1.6 of each resignation and each removal of the Trustee and each appointment
of a successor Trustee. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION
6.8. Acceptance
of Appointment by Successor.
(a) In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the
resignation or removal of the retiring Trustee shall become effective and
such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts
of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon
request of any such successor Trustee, the Company shall execute any and
all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph
(a) of
this Section 6.8.
(c) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article VI.
SECTION
6.9. Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Trustee may be merged or converted or with which it
may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all of the corporate trust business of the Trustee,
shall
be the successor of the Trustee hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto,
provided, that such Person shall be otherwise qualified and eligible
under this Article VI. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation or as otherwise provided above in
this
Section 6.9 to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated, and in case any Securities shall
not have been authenticated, any successor to the Trustee may authenticate
such
Securities either in the name of any predecessor Trustee or in the name of
such
successor Trustee, and in all cases the certificate of authentication shall
have
the full force which it is provided anywhere in the Securities or in this
Indenture that the certificate of the Trustee shall have.
SECTION
6.10. Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or
the
proceeds thereof.
SECTION
6.11. Appointment
of Authenticating Agent.
(a) The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, or of any State
or
Territory thereof or the District of Columbia, authorized under such laws
to act
as Authenticating Agent, having a combined capital and surplus of not less
than
$50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of
condition at least annually pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section
6.11 the combined capital and surplus of such Authenticating Agent shall
be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 6.11, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section 6.11.
(b) Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a
party,
or any Person succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating
Agent
hereunder, provided such Person shall be otherwise eligible under this
Section 6.11, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) An
Authenticating Agent may resign at any time by giving written notice thereof
to
the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to
such
Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.11, the Trustee may appoint a successor
Authenticating Agent eligible under the provisions of this Section 6.11,
which shall be acceptable to the Company, and shall give notice of such
appointment to all Holders. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent.
(d) The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.11 in such amounts as
the Company and the Authenticating Agent shall agree from time to
time.
(e) If
an
appointment of an Authenticating Agent is made pursuant to this Section
6.11, the Securities may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication
in
the following form:
This
is
one of the Securities referred to in the within mentioned
Indenture.
|
Dated:
|
The
Bank of New York Trust Company, National Association, not in its
individual capacity, but solely as Trustee
By:
Authenticating
Agent
By:
Authorized
Signatory
|
ARTICLE
VII
Holder’s
Lists and Reports by Company
SECTION
7.1. Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a) semiannually,
on or before June 30 and December 31 of each year, a list, in such form as
the
Trustee may reasonably require, of the names and addresses of the Holders
as of
a date not more than fifteen (15) days prior to the delivery thereof,
and
(b) at
such
other times as the Trustee may request in writing, within thirty (30) days
after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than fifteen (15) days prior to the time such
list
is furnished,
in
each
case to the extent such information is in the possession or control of the
Company and has not otherwise been received by the Trustee in its capacity
as
Securities Registrar.
SECTION
7.2. Preservation
of Information, Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in Section 7.1 and the names and addresses of
Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so
furnished.
(b) The
rights of Holders to communicate with other Holders with respect to their
rights
under this Indenture or under the Securities, and the corresponding rights
and
privileges of the Trustee, shall be as provided in the Trust Indenture
Act.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the
Company
and the Trustee that neither the Company nor the Trustee nor any agent of
either
of them shall be held accountable by reason of the disclosure of information
as
to the names and addresses of the Holders made pursuant to the Trust Indenture
Act.
SECTION
7.3. Reports
by Company.
(a) The
Company shall furnish to the Holders and to prospective purchasers of
Securities, upon their request, the information required to be furnished
pursuant to Rule 144A(d)(4) under the Securities Act. The delivery
requirement set forth in the preceding sentence may be satisfied by compliance
with Section 7.3(b) hereof.
(b) The
Company shall furnish to each of (i) the Trustee, (ii) the Holders and to
subsequent holders of Securities, (iii) Taberna Capital Management, LLC
(“Taberna”), 000 Xxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. Xxxxxx (or such other address as
designated by Taberna) and (iv) any beneficial owner of the Securities
reasonably identified to the Company (which identification may be made either
by
such beneficial owner or by Taberna), a duly completed and executed certificate
substantially and substantively in the form attached hereto as Exhibit A,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Company not later than
forty-five (45) days after the end of each of the first three fiscal quarters
of
each fiscal year of the Company and not later than ninety (90) days after
the
end of each fiscal year of the Company. The delivery requirements
under this Section 7.3(b) may be satisfied by compliance with Section
8.16(b) of the Trust Agreement.
(c) If
the
Company intends to file its annual and quarterly information with the Securities
and Exchange Commission (the “Commission”) in electronic form pursuant
to Regulation S-T of the Commission using the Commission’s Electronic Data
Gathering, Analysis and Retrieval (“XXXXX”) system, the Company shall
notify the Trustee in the manner prescribed herein of each such annual and
quarterly filing. The Trustee is hereby authorized and directed to
access the XXXXX system for purposes of retrieving the financial information
so
filed. Compliance with the foregoing shall constitute delivery by the
Company of its financial statements to the Trustee in compliance with the
provisions of Section 314(a) of the Trust Indenture Act of 1939, as amended,
if
applicable. The Trustee shall have no duty to search for or obtain
any electronic or other filings that the Company makes with the Commission,
regardless of whether such filings are periodic, supplemental or
otherwise. Delivery of reports, information and documents to the
Trustee pursuant to this Section 7.3(c) shall be solely for purposes of
compliance with this Section 7.3(c) and, if applicable, with Section
314(a) of the Trust Indenture Act. The Trustee’s receipt of such
reports, information and documents shall not constitute notice to it of the
content thereof or any matter determinable from the content thereof, including
the Company’s compliance with any of its covenants hereunder, as to which the
Trustee is entitled to rely upon Officer’s Certificates.
ARTICLE
VIII
Consolidation,
Merger, Conveyance, Transfer or Lease
SECTION
8.1. Company
May Consolidate, Etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety
to any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a) if
the
Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
the entity formed by such consolidation or into which the Company is merged
or
the Person that acquires by conveyance or transfer, or that leases, the
properties and assets of the Company substantially as an entirety shall be
an
entity organized and existing under the laws of the United States of America
or
any State or Territory thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including any
Additional Interest) on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event
that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer
or
lease and, if a supplemental indenture is required in connection with such
transaction, any such supplemental indenture comply with this Article
VIII and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee may rely upon such
Officer’s Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
SECTION
8.2. Successor
Company Substituted.
(a) Upon
any
consolidation or merger by the Company with or into any other Person, or
any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1
and the execution and delivery to the Trustee of the supplemental indenture
described in Section 8.1(a), the successor entity formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease 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 had been named as the Company herein;
and in the event of any such conveyance or transfer, following the execution
and
delivery of such supplemental indenture, the Company shall be discharged
from
all obligations and covenants under the Indenture and the
Securities.
(b) Such
successor Person may cause to be executed, and may issue either in its own
name
or in the name of the Company, any or all of the Securities issuable hereunder
that theretofore shall not have been signed by the Company and delivered
to the
Trustee; and, upon the order of such successor Person instead of the Company
and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor
Person
thereafter shall cause to be executed and delivered to the Trustee on its
behalf. All the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this
Indenture.
(c) In
case
of any such consolidation, merger, sale, conveyance or lease, such changes
in
phraseology and form may be made in the Securities thereafter to be issued
as
may be appropriate to reflect such occurrence.
ARTICLE
IX
Supplemental
Indentures
SECTION
9.1. Supplemental
Indentures Without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or
more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to
evidence the succession of another Person to the Company, and the assumption
by
any such successor of the covenants of the Company herein and in the Securities;
or
(b) to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee; or
(c) to
cure
any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or
amend
any other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the other provisions of this
Indenture (including any and all actions necessary or desirable as a result
of
changes in law or regulations), provided, that such action pursuant to
this clause (b) shall not adversely affect in any material respect the interests
of any Holders or the holders of the Preferred Securities; or
(d) to
comply
with the rules and regulations of any securities exchange or automated quotation
system on which any of the Securities may be listed, traded or quoted;
or
(e) to
add to
the covenants, restrictions or obligations of the Company or to add to the
Events of Default, provided, that such action pursuant to this clause
(e) shall not adversely affect in any material respect the interests of any
Holders or the holders of the Preferred Securities; or
(f) to
modify, eliminate or add to any provisions of the Indenture or the Securities
to
such extent as shall be necessary to ensure that the Securities are treated
as
indebtedness of the Company for United States Federal income tax purposes,
provided, that such action pursuant to this clause (f) shall not
adversely affect in any material respect the interests of any Holders or
the
holders of the Preferred Securities; or
(g) to
make
non-material administrative changes as the Company deems
appropriate.
SECTION
9.2. Supplemental
Indentures With Consent of Holders.
(a) Subject
to Section 9.1, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities, by
Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or
indentures supplemental hereto for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Indenture
or
of modifying in any manner the rights of the Holders of Securities under
this
Indenture; provided, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security,
(i) change
the Stated Maturity of the principal or any premium of any Security or change
the date of payment of any installment of interest (including any Additional
Interest) on any Security, or reduce the principal amount thereof or the
rate of
interest thereon or any premium payable upon the redemption thereof or change
the place of payment where, or the coin or currency in which, any Security
or
interest thereon is payable, or restrict or impair the right to institute
suit
for the enforcement of any such payment on or after such date; or
(ii) reduce
the percentage in aggregate principal amount of the Outstanding Securities,
the
consent of whose Holders is required for any such supplemental indenture,
or the
consent of whose Holders is required for any waiver of compliance with any
provision of this Indenture or of defaults hereunder and their consequences
provided for in this Indenture; or
(iii) modify
any of the provisions of this Section 9.2, Section 5.13 or
Section 10.7, except to increase any percentage in aggregate
principal
amount of the Outstanding Securities, the consent of whose Holders is required
for any reason, or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Security;
or
(iv) change
the permitted minimum denominations of any Outstanding Securities.
provided,
further, that, so long as any Preferred Securities remain outstanding, no
amendment under this Section 9.2 shall be effective until the holders of
a majority in Liquidation Amount of the Preferred Securities shall have
consented to such amendment; provided, further, that if the
consent of the Holder of each Outstanding Security is required for any amendment
under this Indenture, such amendment shall not be effective until the holder
of
each Outstanding Preferred Security shall have consented to such
amendment.
(b) It
shall
not be necessary for any Act of Holders under this Section 9.2 to approve
the particular form of any proposed supplemental indenture, but it shall
be
sufficient if such Act shall approve the substance thereof.
SECTION
9.3. Execution
of Supplemental Indentures.
In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article IX or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in conclusively relying upon, an Officer’s
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and
that
all conditions precedent herein provided for relating to such action have
been
complied with. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture that affects the Trustee’s own rights,
duties, indemnities or immunities under this Indenture or
otherwise. Copies of the final form of each supplemental indenture
shall be delivered by the Trustee at the expense of the Company to each Holder,
and, if the Trustee is the Property Trustee, to each holder of Preferred
Securities, promptly after the execution thereof.
SECTION
9.4. Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article IX, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder
of Securities and every holder of Preferred Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION
9.5. Reference
in Securities to Supplemental Indentures.
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and shall if required by the Company,
bear a notation in form approved by the Company as to any matter provided
for in
such supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Company, to any
such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE
X
Covenants
SECTION
10.1. Payment
of Principal, Premium, if any, and Interest.
The
Company covenants and agrees for the benefit of the Holders of the Securities
that it will duly and punctually pay the principal of and any premium and
interest (including any Additional Interest) on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION
10.2. Money
for Security Payments to be Held in Trust.
(a) Whenever
the Company shall have one or more Paying Agents, it will, prior to 10:00
a.m.,
New York City time, on each due date of the principal of or any premium or
interest (including any Additional Interest) on any Securities, deposit with
such Paying Agent a sum sufficient to pay such amount, such sum to be held
as
provided in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure to so
act.
(b) The
Company will cause each Paying Agent for the Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent
shall agree with the Trustee, subject to the provisions of this Section
10.2, that such Paying Agent will (i) comply with the provisions of this
Indenture and the Trust Indenture Act applicable to it as a Paying Agent
and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities) in the making of any payment in respect of the Securities,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums
held in trust by such Paying Agent for payment in respect of the
Securities.
(c) The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company
Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by
the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(d) Any
money
deposited with the Trustee or any Paying Agent for the payment of the principal
of and any premium or interest (including any Additional Interest) on any
Security and remaining unclaimed for two years after such principal and any
premium or interest has become due and payable shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Company Request to the Company, or (if then held by the Company)
shall (unless otherwise required by mandatory provision of applicable escheat
or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look
only to the Company for payment thereof, and all liability of the Trustee
or
such Paying Agent with respect to such trust money, and all liability of
the
Company as trustee thereof, shall thereupon cease; provided, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business
Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION
10.3. Statement
as to Compliance.
The
Company shall deliver to the Trustee, within ninety (90) days after the end
of
each fiscal year of the Company ending after the date hereof, an Officer’s
Certificate covering the preceding calendar year, stating whether or not
to the
knowledge of the signers thereof the Company is in default in the performance
or
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have
knowledge. The delivery requirements of this Section 10.3 may
be satisfied by compliance with Section 8.16(a) of the Trust
Agreement.
SECTION
10.4. Calculation
Agent.
(a) The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR
in
respect of each Interest Payment Date in accordance with the terms of
Schedule A (the “Calculation Agent”). The Company has
initially appointed the Property Trustee as Calculation Agent for purposes
of
determining LIBOR for each Interest Payment Date. The Calculation
Agent may be removed by the Company at any time. Notwithstanding the
foregoing, so long as the Property Trustee holds any of the Securities, the
Calculation Agent shall be the Property Trustee. If the Calculation
Agent is unable or unwilling to act as such or is removed by the Company,
the
Company will promptly appoint as a replacement Calculation Agent the London
office of a leading bank which is engaged in transactions in Eurodollar deposits
in the international Eurodollar market and which does not control or is not
controlled by or under common control with the Company or its
Affiliates. The Calculation Agent may not resign its duties without a
successor having been duly appointed.
(b) The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date (as defined in
Schedule A), but in no event later than 11:00 a.m. (London time) on the
Business Day immediately following each LIBOR Determination Date, the
Calculation Agent will calculate the interest rate (the Interest Payment
shall
be rounded to the nearest cent, with half a cent being rounded upwards) for
the
related Interest Payment Date, and will communicate such rate and amount
to the
Company, the Trustee, each Paying Agent and the Depositary. The
Calculation Agent will also specify to the Company the quotations upon which
the
foregoing rates and amounts are based and, in any event, the Calculation
Agent
shall notify the Company before 5:00 p.m. (London time) on each LIBOR
Determination Date that either: (i) it has determined or is in
the process of determining the foregoing rates and amounts or (ii) it has
not determined and is not in the process of determining the foregoing rates
and
amounts, together with its reasons therefor. The Calculation Agent’s
determination of the foregoing rates and amounts for any Interest Payment
Date
will (in the absence of manifest error) be final and binding upon all
parties. For the sole purpose of calculating the interest rate for
the Securities, “Business Day” shall be defined as any day on which dealings in
deposits in Dollars are transacted in the London interbank market.
SECTION
10.5. Additional
Tax Sums.
So
long
as no Event of Default has occurred and is continuing, if (a) the Trust is
the
Holder of all of the Outstanding Securities and (b) a Tax Event described
in
clause (i) or (iii) in the definition of Tax Event in Section 1.1 hereof
has occurred and is continuing, the Company shall pay to the Trust (and its
permitted successors or assigns under the related Trust Agreement) for so
long
as the Trust (or its permitted successor or assignee) is the registered holder
of the Outstanding Securities, such amounts as may be necessary in order
that
the amount of Distributions (including any Additional Interest Amount (as
defined in the Trust Agreement)) then due and payable by the Trust on the
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of
any
Additional Taxes arising from such Tax Event (additional such amounts payable
by
the Company to the Trust, the “Additional Tax
Sums”). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest on the
Securities, such mention shall be deemed to include mention of the payments
of
the Additional Tax Sums provided for in this Section 10.5 to the extent
that, in such context, Additional Tax Sums are, were or would be payable
in
respect thereof pursuant to the provisions of this Section 10.5 and
express mention of the payment of Additional Tax Sums (if applicable) in
any
provisions hereof shall not be construed as excluding Additional Tax Sums
in
those provisions hereof where such express mention is not made.
SECTION
10.6. Additional
Covenants.
(a) The
Company covenants and agrees with each Holder of Securities that if an Event
of
Default shall have occurred and be continuing, it shall not (i) declare or
pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s Equity Interests,
except only to the extent necessary to maintain its status as a real estate
investment trust under the Code, provided such distributions to maintain
its
status as a real estate investment trust under the Code may not be made in
any
event if there has occurred (x) an Event of Default described in clauses
(a),
(b), (e) or (f) of Section 5.1, (y) any Event of Default with respect to
which
acceleration of principal has been triggered pursuant to Section 5.2, or
(z) an
Event of Default triggered by a breach of Section 10.9, (ii) vote in favor
of or
permit or otherwise allow any of its Subsidiaries to declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any shares of any
such
Subsidiary’s preferred stock or other Equity Interests entitling the holders
thereof to a stated rate of return (for the avoidance of doubt, whether such
preferred stock or other Equity Interests are perpetual or otherwise), or
(iii)
make any payment of principal of or any interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the
Securities.
(b) The
Company also covenants with each Holder of Securities (i) to hold, directly
or
indirectly, one hundred percent (100%) of the Common Securities of the Trust,
provided, that any permitted successor of the Company hereunder may
succeed to the Company’s ownership of such Common Securities, (ii) as holder of
such Common Securities, not to voluntarily dissolve, wind-up or liquidate
the
Trust other than (A) in connection with a distribution of the Securities
to the
holders of the Preferred Securities in liquidation of the Trust or (B) in
connection with certain mergers, consolidations or amalgamations permitted
by
the Trust Agreement and (iii) to use its reasonable commercial efforts,
consistent with the terms and provisions of the Trust Agreement, to cause
the
Trust to continue to be taxable as a grantor trust and not as a corporation
for
United States Federal income tax purposes.
(c) The
Company also agrees to use its reasonable efforts to meet the requirements
to
qualify, effective for the fiscal year ending December 31, 2007 and all future
fiscal years, as a real estate investment trust under the Internal Revenue
Code
of 1986, as amended.
(d) The
Company shall notify in writing, within ten (10) Business Days after the
occurrence thereof, the Trustee and each holder of Preferred Securities of
the
occurrence of a Change of Control (the “Change of Control
Notice”). If the Company and the Trustee shall have received,
within thirty (30) days after delivering the holders of the Preferred Securities
of the Change of Control Notice, written notice from any holder of Preferred
Securities of its election to cause the Defeasance or redemption, as applicable,
of the Securities as provided in this Section 10.6(d) (the “Change of
Control Election”), then the Company shall (i) if such Change of Control
Election is received on or prior to the Interest Payment Date in July 2012,
cause Article XIII to be applied to the Electing Securities or (ii) if
such Change of Control Election is received after the Interest Payment Date
in
July 2012, redeem the Electing Securities pursuant to Section
11.1(b).
(e) The
Company covenants and agrees with each Holder of Securities and each Holder
of
Preferred Securities that if an Event of Default shall have occurred and
be
continuing, the Company shall afford to each such Holder and its counsel,
accountants and other representatives full access to the books and records
of
the Company in order that any such Holder may have full opportunity to make
such
investigations as such Holder may desire to make of the affairs of the Seller,
provided, that any such investigation shall be conducted in such a
manner as not to interfere unreasonably with the operation of the businesses
of
the Company.
SECTION
10.7. Waiver
of Covenants.
The
Company may omit in any particular instance to comply with any covenant or
condition contained in Section 10.6 if, before or after the time for such
compliance, the Holders of at least a majority in aggregate principal amount
of
the Outstanding Securities shall, by Act of such Holders, and at least a
majority of the aggregate Liquidation Amount of the Preferred Securities
then
outstanding, by consent of such holders, either waive such compliance in
such
instance or generally waive compliance with such covenant or condition, but
no
such waiver shall extend to or affect such covenant or condition except to
the
extent so expressly waived, and, until such waiver shall become effective,
the
obligations of the Company in respect of any such covenant or condition shall
remain in full force and effect.
SECTION
10.8. Treatment
of Securities.
The
Company will treat the Securities as indebtedness, and the amounts, other
than
payments of principal, payable in respect of the principal amount of such
Securities as interest, for all United States federal income tax
purposes. All payments in respect of the Securities will be made free
and clear of United States withholding tax to any beneficial owner thereof
that
has provided an Internal Revenue Service Form W-9 or W-8BEN (or any substitute
or successor form) establishing its U.S. or non-U.S. status for United States
federal income tax purposes, or any other applicable form establishing a
complete exemption from United States withholding tax.
SECTION
10.9. Financial
Covenants.
(a) The
Company shall not permit Tangible Net Worth, at any time, to be less than
the
sum of (i) $225,000,000, plus (ii) 50% of all proceeds of Equity
Interests issued by the Company after the date hereof.
(b) The
Company shall not permit, at any time, the ratio of (i) EBITDA for the period
consisting of the preceding four (4) fiscal quarters ending on, or most recently
ended prior to, such time to (ii) Interest Expense for such period, to be
less
than 2.50 to 1.
(c) The
Company shall not permit, at any time, the ratio of (i) Total Debt to (ii)
Tangible Net Worth, to exceed 0.5 to 1.
SECTION
10.10. Delivery
of Information. For so long as any of the Securities remain
Outstanding, the Company shall deliver to Taberna all information delivered
by
the Company to the lenders pursuant to the Company’s senior credit facility, if
any, and, from time to time, such other financial data and information in
the
possession of the Company as Taberna may reasonably request.
SECTION
10.11. Inspection
of Books and Records. If an Event of Default has occurred and is
continuing, the Company shall permit Taberna to examine the books and records
of
account of the Company and its Subsidiaries (and to make copies thereof and
extracts therefrom) and to discuss the affairs, finances and accounts of
such
Persons with, and to be advised as to the same by, its officers, all at such
reasonable times and intervals during normal business hours as Taberna may
reasonably request, at the expense of Taberna, provided, that should
the Company be in default under this Indenture, all expenses incurred in
exercising the rights granted to Taberna under this Section 10.11 shall
be borne by the Company. Taberna shall use good faith efforts to
coordinate such inspections so as to minimize the interference with and
disruption to the Company’s normal business operations.
ARTICLE
XI
Redemption
of Securities
SECTION
11.1. Optional
Redemption and Mandatory Redemption.
(a) The
Company may, at its option, on any Interest Payment Date, on or after
July 30, 2012, redeem the Securities in whole at any time
or in part from time to time, at a Redemption Price equal to one hundred
percent
(100%) of the principal amount thereof (or of the redeemed portion thereof,
as
applicable), together, in the case of any such redemption, with accrued and
unpaid interest, including any Additional Interest, through but excluding
the
date fixed as the Redemption Date and, if such redemption shall occur prior
to
the expiration of the Fixed Rate Period, Breakage Costs, if any, less Breakage
Gains, if any (the “Optional Redemption Price”).
(b) The
Company shall, upon receipt of a Change of Control Election with respect
to a
Change of Control which occurs after the Interest Payment Date in July 2012,
redeem the Electing Securities in whole on a date no more than thirty (30)
days
after receipt of the Change of Control Election, at a Redemption Price equal
to
one hundred percent (100%) of the outstanding principal amount thereof,
together, in the case of any such redemption, with accrued and unpaid interest,
including any Additional Interest, to but excluding the date fixed as the
Redemption Date and, if such redemption shall occur prior to the expiration
of
the Fixed Rate Period, Breakage Costs, less Breakage Gains, if any (the
“Mandatory Redemption Price”).
SECTION
11.2. Special
Event Redemption.
Prior
to
July 30, 2012, upon the occurrence and during the continuation of a Special
Event, the Company may, at its option, redeem the Securities, in whole but
not
in part, at a Redemption Price equal to one hundred seven and one half percent
(107.5%) of the principal amount thereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date (the “Special Redemption
Price”).
SECTION
11.3. Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities, in whole or in part, shall
be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less than
forty-five (45) days and not more than seventy-five (75) days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee and the Property Trustee under the Trust Agreement in
writing
of such date and of the principal amount of the Securities to be redeemed
and
provide the additional information required to be included in the notice
or
notices contemplated by Section 11.5. In the case of any
redemption of Securities, in whole or in part, (a) prior to the expiration
of
any restriction on such redemption provided in this Indenture or the Securities
or (b) pursuant to an election of the Company which is subject to a condition
specified in this Indenture or the Securities, the Company shall furnish
the
Trustee with an Officer’s Certificate and an Opinion of Counsel evidencing
compliance with such restriction or condition.
SECTION
11.4. Selection
of Securities to be Redeemed.
(a) If
less
than all the Securities are to be redeemed, the particular Securities to
be
redeemed shall be selected and redeemed on a pro rata basis not more than
sixty
(60) days prior to the Redemption Date by the Trustee from the Outstanding
Securities not previously called for redemption, provided, that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
(b) The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the
case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be
redeemed.
(c) The
provisions of paragraphs (a) and (b) of this Section 11.4 shall not apply
with respect to any redemption affecting only a single Security, whether
such
Security is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal amount of
the
Security shall be in an authorized denomination (which shall not be less
than
the minimum authorized denomination) for such Security.
SECTION
11.5. Notice
of Redemption.
(a) Notice
of
redemption shall be given by the Trustee by first class mail, postage prepaid,
mailed not later than the thirtieth (30th) day,
and not
earlier than the sixtieth (60th) day,
prior to the
applicable Redemption Date or Maturity to each Holder of Securities to be
redeemed, in whole or in part (unless a shorter notice shall be satisfactory
to
the Property Trustee under the related Trust Agreement).
(b) With
respect to Securities to be redeemed, in whole or in part, each notice of
redemption shall state:
(i) the
applicable Redemption Date;
(ii) the
Redemption Price or, if the Redemption Price cannot be calculated prior to
the
time the notice is required to be sent, the estimate of the Redemption Price,
as
calculated by the Company, together with a statement that it is an estimate
and
that the actual Redemption Price will be calculated on the fifth Business
Day
prior to the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such Redemption
Price is calculated);
(iii) if
less
than all Outstanding Securities are to be redeemed, the identification (and,
in
the case of partial redemption, the respective principal amounts) of the
amount
of and particular Securities to be redeemed;
(iv) that
on
the Redemption Date, the Redemption Price will become due and payable upon
each
such Security or portion thereof, and that any interest (including any
Additional Interest) on such Security or such portion, as the case may be,
shall
cease to accrue on and after said date;
(v) the
place
or places where such Securities are to be surrendered for payment of the
Redemption Price; and
(vi) that
such
notice of redemption may be withdrawn by the Company, no later than ten (10)
Business Days prior to the applicable Redemption Date, if certain conditions
set
forth in this Indenture are not met.
(c) Notice
of
redemption of Securities to be redeemed, in whole or in part, at the election
of
the Company shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company and shall be
irrevocable. The notice if mailed in the manner provided above shall
be conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Security designated
for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
SECTION
11.6. Deposit
of Redemption Price.
Prior
to
10:00 a.m., New York City time, on the Redemption Date specified in the notice
of redemption given as provided in Section 11.5, the Company will deposit
with the Trustee or with one or more Paying Agents an amount of money sufficient
to pay the Redemption Price of, and any accrued interest (including any
Additional Interest) on, all the Securities (or portions thereof) that are
to be
redeemed on that date.
SECTION
11.7. Payment
of Securities Called for Redemption.
(a) If
any
notice of redemption has been given as provided in Section 11.5, the
Securities or portion of Securities with respect to which such notice has
been
given shall become due and payable on the date and at the place or places
stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption
Date. On presentation and surrender of such Securities at a Place of
Payment specified in such notice, the Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable Redemption
Price, together with accrued interest (including any Additional Interest)
to the
Redemption Date.
(b) Upon
presentation of any Security redeemed in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder thereof, at
the
expense of the Company, a new Security or Securities, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion
of
the Security so presented and having the same Original Issue Date, Stated
Maturity and terms.
(c) If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal of and any premium on such Security shall, until
paid,
bear interest from the Redemption Date at the rate prescribed therefor in
the
Security.
ARTICLE
XII
Subordination
of Securities
SECTION
12.1. Securities
Subordinate to Senior Debt.
The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article XII, the payment of the principal
of and any premium and interest (including any Additional Interest) on each
and
all of the Securities are hereby expressly made subordinate and subject in
right
of payment to the prior payment in full of all Senior Debt.
SECTION
12.2. No
Payment When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution,
Etc.
(a) In
the
event and during the continuation of any default by the Company in the payment
of any principal of or any premium or interest on any Senior Debt (following
any
grace period, if applicable) when the same becomes due and payable, whether
at
maturity or at a date fixed for prepayment or by declaration of acceleration
or
otherwise, then, upon written notice of such default to the Company by the
holders of such Senior Debt or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist, no
direct
or indirect payment (in cash, property, securities, by set-off or otherwise)
shall be made or agreed to be made on account of the principal of or any
premium
or interest (including any Additional Interest) on any of the Securities,
or in
respect of any redemption, repayment, retirement, purchase or other acquisition
of any of the Securities.
(b) In
the
event of a bankruptcy, insolvency or other proceeding described in clause
(d) or
(e) of the definition of Event of Default (each such event, if any, herein
sometimes referred to as a “Proceeding”), all Senior Debt (including
any interest thereon accruing after the commencement of any such proceedings)
shall first be paid in full before any payment or distribution, whether in
cash,
securities or other property, shall be made to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether
in cash, securities or other property (other than securities of the Company
or
any other entity provided for by a plan of reorganization or readjustment
the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Debt at the time outstanding and
to any
securities issued in respect thereof under any such plan of reorganization
or
readjustment), which would otherwise (but for these subordination provisions)
be
payable or deliverable in respect of the Securities shall be paid or delivered
directly to the holders of Senior Debt in accordance with the priorities
then
existing among such holders until all Senior Debt (including any interest
thereon accruing after the commencement of any Proceeding) shall have been
paid
in full.
(c) In
the
event of any Proceeding, after payment in full of all sums owing with respect
to
Senior Debt, the Holders of the Securities, together with the holders of
any
obligations of the Company ranking on a parity with the Securities, shall
be
entitled to be paid from the remaining assets of the Company the amounts
at the
time due and owing on account of unpaid principal of and any premium and
interest (including any Additional Interest) on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any Equity Interests or any
obligations of the Company ranking junior to the Securities and such other
obligations. If, notwithstanding the foregoing, any payment or
distribution of any character on any security, whether in cash, securities
or
other property (other than securities of the Company or any other entity
provided for by a plan of reorganization or readjustment the payment of which
is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment
of
all Senior Debt at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment) shall be received
by the Trustee or any Holder in contravention of any of the terms hereof
and
before all Senior Debt shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior
Debt at the time outstanding in accordance with the priorities then existing
among such holders for application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay all such Senior Debt (including any
interest thereon accruing after the commencement of any Proceeding) in
full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder
of
Senior Debt is hereby irrevocably authorized to endorse or assign the
same.
(d) The
Trustee and the Holders, at the expense of the Company, shall take such
reasonable action (including the delivery of this Indenture to an agent for
any
holders of Senior Debt or consent to the filing of a financing statement
with
respect hereto) as may, in the opinion of counsel designated by the holders
of a
majority in principal amount of the Senior Debt at the time outstanding,
be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
(e) The
provisions of this Section 12.2 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions
of
this Indenture.
(f) The
securing of any obligations of the Company, otherwise ranking on a parity
with
the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking
on
a parity with the Securities or ranking junior to the Securities.
SECTION
12.3. Payment
Permitted If No Default.
Nothing
contained in this Article XII or elsewhere in this Indenture or in any of
the Securities shall prevent (a) the Company, at any time, except during
the
pendency of the conditions described in paragraph (a) of Section 12.2 or
of any Proceeding referred to in Section 12.2, from making payments at
any time of principal of and any premium or interest (including any Additional
Interest) on the Securities or (b) the application by the Trustee of any
moneys
deposited with it hereunder to the payment of or on account of the principal
of
and any premium or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time
of
such application by the Trustee, it did not have knowledge (in accordance
with
Section 12.8) that such payment would have been prohibited by the
provisions of this Article XII, except as provided in Section
12.8.
SECTION
12.4. Subrogation
to Rights of Holders of Senior Debt.
Subject
to the payment in full of all amounts due or to become due on all Senior
Debt,
or the provision for such payment in cash or cash equivalents or otherwise
in a
manner satisfactory to the holders of Senior Debt, the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to
the
holders of such Senior Debt pursuant to the provisions of this Article
XII (equally and ratably with the holders of all indebtedness of the Company
that by its express terms is subordinated to Senior Debt of the Company to
substantially the same extent as the Securities are subordinated to the Senior
Debt and is entitled to like rights of subrogation by reason of any payments
or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property
and
securities applicable to the Senior Debt until the principal of and any premium
and interest (including any Additional Interest) on the Securities shall
be paid
in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payments
made pursuant to the provisions of this Article XII to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among
the
Company, its creditors other than holders of Senior Debt, and the Holders
of the
Securities, be deemed to be a payment or distribution by the Company to or
on
account of the Senior Debt.
SECTION
12.5. Provisions
Solely to Define Relative Rights.
The
provisions of this Article XII are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities
on the
one hand and the holders of Senior Debt on the other hand. Nothing
contained in this Article XII or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between the Company and
the
Holders of the Securities, the obligations of the Company, which are absolute
and unconditional, to pay to the Holders of the Securities the principal
of and
any premium and interest (including any Additional Interest) on the Securities
as and when the same shall become due and payable in accordance with their
terms, (b) affect the relative rights against the Company of the Holders
of the
Securities and creditors of the Company other than their rights in relation
to
the holders of Senior Debt or (c) prevent the Trustee or the Holder of any
Security (or to the extent expressly provided herein, the holder of any
Preferred Security) from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, including filing and voting
claims in any Proceeding, subject to the rights, if any, under this Article
XII of the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION
12.6. Trustee
to Effectuate Subordination.
Each
Holder of a Security by his or her acceptance thereof authorizes and directs
the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article XII and appoints the Trustee his or her attorney-in-fact for any
and all such purposes.
SECTION
12.7. No
Waiver of Subordination Provisions.
(a) No
right
of any present or future holder of any Senior Debt to enforce subordination
as
herein provided shall at any time in any way be prejudiced or impaired by
any
act or failure to act on the part of the Company or by any act or failure
to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of
any
knowledge thereof that any such holder may have or be otherwise charged
with.
(b) Without
in any way limiting the generality of paragraph (a) of this Section 12.7,
the holders of Senior Debt may, at any time and from to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to such Holders of the Securities and without impairing
or releasing the subordination provided in this Article XII or the
obligations hereunder of such Holders of the Securities to the holders of
Senior
Debt, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Debt, or otherwise amend or supplement in any manner Senior Debt or
any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding, (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt, (iii) release any Person
liable in any manner for the payment of Senior Debt and (iv) exercise or
refrain
from exercising any rights against the Company and any other
Person.
SECTION
12.8. Notice
to Trustee.
(a) The
Company shall give prompt written notice to a Responsible Officer of the
Trustee
of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Any such notice
shall be sent to 000 Xxxxxx, 00xx Xxxxx,
Xxxxxxx,
Xxxxx 00000 Attn: Global Corporate Trust – Vestin Realty Mortgage II,
Inc. Notwithstanding the provisions of this Article XII or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of
any
payment to or by the Trustee in respect of the Securities, unless and until
a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder of Senior Debt or from any trustee, agent or
representative therefor; provided, that if the Trustee shall not have
received the notice provided for in this Section 12.8 at least two
Business Days prior to the date upon which by the terms hereof any monies
may
become payable for any purpose (including, the payment of the principal of
and
any premium on or interest (including any Additional Interest) on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same
to the purpose for which they were received and shall not be affected by
any
notice to the contrary that may be received by it within two Business Days
prior
to such date.
(b) The
Trustee shall be entitled to rely on the delivery to it of a written notice
by a
Person representing himself or herself to be a holder of Senior Debt (or
a
trustee, agent, representative or attorney-in-fact therefor) to establish
that
such notice has been given by a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article XII, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of
the
Trustee as to the amount of Senior Debt held by such Person, the extent to
which
such Person is entitled to participate in such payment or distribution and
any
other facts pertinent to the rights of such Person under this Article
XII, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of
such
Person to receive such payment.
SECTION
12.9. Reliance
on Judicial Order or Certificate of Liquidating Agent.
Upon
any
payment or distribution of assets of the Company referred to in this Article
XII, the Trustee and the Holders of the Securities shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee
for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for
the
purpose of ascertaining the Persons entitled to participate in such payment
or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid
or
distributed thereon and all other facts pertinent thereto or to this Article
XII.
SECTION
12.10. Trustee
Not Fiduciary for Holders of Senior Debt.
The
Trustee, in its capacity as trustee under this Indenture, shall not be deemed
to
owe any fiduciary duty to the holders of Senior Debt and shall not be liable
to
any such holders if it shall in good faith mistakenly pay over or distribute
to
Holders of Securities or to the Company or to any other Person cash, property
or
securities to which any holders of Senior Debt shall be entitled by virtue
of
this Article XII or otherwise.
SECTION
12.11. Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article XII with respect to any Senior Debt that may at any time
be held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights
as such
holder.
SECTION
12.12. Article
Applicable to Paying Agents.
If
at any
time any Paying Agent other than the Trustee shall have been appointed by
the
Company and be then acting hereunder, the term “Trustee” as used in
this Article XII shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent
were
named in this Article XII in addition to or in place of the
Trustee. For the avoidance of doubt, the Company shall not be
permitted to appoint itself or any Affiliate as a Paying Agent
hereunder.
ARTICLE
XIII
DEFEASANCE
SECTION
13.1. Defeasance
and Discharge.
Upon
the
exercise of the option provided in Section 10.6(d) by a holder of
Preferred Securities as a result of a Change of Control which occurs on or
prior
to July 30, 2012 to have this Section 13.1 applied to the Electing
Securities, the Company shall, within thirty (30) days following its receipt
of
the Change of Control Election, satisfy the conditions set forth in Section
13.2. The Company shall be deemed to have been discharged from
its obligations with respect to the Electing Securities as provided in this
Section 13.1 on and after the date the conditions set forth in Section
13.2 are satisfied (hereinafter called
“Defeasance”). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Electing Securities and to have satisfied all of its other
obligations under such Electing Securities and this Indenture insofar as
such
Electing Securities are concerned (and the Trustee, upon request and at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following, which shall survive until otherwise terminated
or discharged hereunder (a) the rights of Holders of the Electing Securities
to
receive, solely from the trust fund described in Section 13.2 and as more
fully set forth in such Section 13.2, payments in respect of the
principal of, premium, if any, and interest on the Electing Securities when
payments are due, (b) the Company’s obligations with respect to the Electing
Securities under Sections2.4, 3.5, 3.6, 10.2
and any Additional Tax Sums under Section 10.5, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (d) this Article
XIII.
SECTION
13.2. Conditions
to Defeasance.
The
following shall be the conditions to application of Section 13.1 to the
Electing Securities:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the requirements contemplated
by
Section 6.1 and agrees to comply with the provisions of this Article
XIII applicable to it) 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 Electing Securities, (i) money in an amount
in
Dollars, (ii) Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will
provide, not later than one day before the due date of any payment, money
in an
amount in Dollars, or (iii) a combination thereof, in each case sufficient,
in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying Trustee) to pay and discharge, one hundred percent (100%) of the
principal amount of the Electing Securities on July 30, 2012 (the
“Defeasance Maturity Date”) plus interest on the Electing Securities
due and payable on the Interest Payment Dates occurring prior to and including
the Defeasance Maturity Date and Breakage Costs, if any, in accordance with
the
terms of this Indenture and the Electing Securities.
(b) Such
Defeasance shall not cause the Trustee to have a conflicting interest within
the
meaning of the Trust Indenture Act.
(c) Such
Defeasance shall not result in the trust arising from such deposit constituting
an “investment company” within the meaning of the Investment Company Act of
1940, unless such trust shall be qualified or exempt from regulation
thereunder.
(d) The
Company shall have delivered to the Trustee and Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect
to
such Defeasance have been complied with.
SECTION
13.3. Deposited
Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.
Subject
to the provisions of Section 10.2(d), all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee or
other
qualifying trustee (solely for purposes of this Section 13.3 and
Section 13.4, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 13.2 in
respect of the Electing Securities shall be held in trust and applied by
the
Trustee, in accordance with the provisions of the Electing Securities and
this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Electing Securities, of all sums due and
to
become due thereon in respect of principal, premium, if any, and interest,
but
money so held in trust need not be segregated from other funds except to
the
extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge
imposed on or assessed against the Government Obligations deposited pursuant
to
Section 13.2 or the principal and interest received in respect thereof
other than any such tax, fee or other charge that by law is for the account
of
the Holders of Electing Securities.
Anything
in this Article XIII to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any
money
or Government Obligations held by it as provided in Section 13.2 with
respect to the Electing Securities that, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Defeasance with respect to the Electing Securities.
SECTION
13.4. Reinstatement.
If
the
Trustee or the Paying Agent is unable to apply any money in accordance with
this
Article XIII with respect to the electing Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations under
this Indenture and the Electing Securities shall be revived and reinstated
as
though no deposit had occurred pursuant to this Article XIII with respect
to Electing Securities until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 13.3 with
respect to the Electing Securities in accordance with this Article XIII;
provided, however, that if the Company makes any payment of principal
of, premium, if any, or interest on any Electing Security following the
reinstatement of its obligations, the Company shall be subrogated to the
rights
of the Holders of Electing Securities to receive such payment from the money
so
held in trust.
*
* * *
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
*
* * *
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
|
|
By:_________________________________
|
|
|
Name:
|
|
|
Title:
|
The
Bank of New York Trust Company, National Association, as
Trustee
|
|
By:_________________________________
|
|
|
Name:
|
|
|
Title:
|
Schedule
A
DETERMINATION
OF LIBOR
With
respect to the Securities, the London interbank offered rate (“LIBOR”)
shall be determined by the Calculation Agent in accordance with the following
provisions (in each case rounded to the nearest .000001%):
(1) On
the second LIBOR Business Day (as defined below) prior to a Distribution
Date
after the expiration of the Fixed Rate Period (each such
day, a “LIBOR Determination Date”), LIBOR for any given security shall
for the following interest payment period equal the rate (expressed as a
percentage per annum) for U.S. dollar deposits in Europe, for a three (3)
month
period, that appears on Dow Xxxxx Telerate (as defined in the International
Swaps and Derivatives Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions) Page 3750, or such other page as may replace such Page 3750,
as of
11:00 a.m. (London time) on such LIBOR Determination Date, as reported by
Bloomberg Financial Market Commodities News or any successor service. If
such
rate is superseded on Telerate Page 3750 by a corrected rate before 12:00
noon
(London time) on such LIBOR Determination Date, the corrected rate as so
substituted will be LIBOR for such LIBOR Determination Date.
(2) If
on any LIBOR Determination Date such rate does not appear on Dow Xxxxx Telerate
Page 3750 (“Telerate Page 3750”) or such other page as may replace such
Page 3750, the Calculation Agent shall determine the arithmetic mean of the
offered quotations (expressed as a percentage per annum) of the Reference
Banks
(as defined below) to leading banks in the London interbank market for U.S.
dollar deposits in Europe, for a three (3) month period, for an amount
determined by the Calculation Agent (but not less than U.S. $1,000,000) by
reference to requests for quotations as of 11:00 a.m. (London time) on the
LIBOR
Determination Date, as reported by Bloomberg Financial Markets Commodities
News
or any successor service, made by the Calculation Agent to the Reference
Banks.
If on any LIBOR Determination Date at least two of the Reference Banks provide
such quotations, LIBOR shall equal such arithmetic mean of such quotations.
If
on any LIBOR Determination Date only one or none of the Reference Banks provide
such quotations, LIBOR shall be deemed to be the arithmetic mean of the offered
quotations (expressed as a percentage per annum) that two (2) leading banks
in
The City of New York selected by the Calculation Agent are quoting on the
relevant LIBOR Determination Date for U.S. dollar deposits in Europe, for
a
three (3) month period, for an amount determined by the Calculation Agent
(but
not less than U.S. $1,000,000); provided, that if the Calculation Agent
is required but is unable to determine a rate in accordance with at least
one of
the procedures provided above, LIBOR shall be LIBOR as determined on the
previous LIBOR Determination Date.
(3) As
used herein: “Reference Banks” means four major banks in the London
interbank market selected by the Calculation Agent; and “LIBOR Business
Day” means a day (a) on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) in
London
and (b) is not a Saturday, Sunday or other day on which commercial banking
institutions in New York, New York or Wilmington, Delaware are authorized
or
obligated by law or executive order to be closed. If the rate that
appears on Telerate Page 3750 is superseded by a corrected rate before 12:00
noon (London time) on such any LIBOR Determination Date, the corrected rate
as
so substituted will be LIBOR for such LIBOR Determination Date.
Schedule
A-
Form
of Officer’s Financial Certificate
The
undersigned, the [Chairman/Vice Chairman/Chief Executive Officer/President/Vice
President/Chief Financial Officer/Treasurer/Assistant
Treasurer], hereby certifies, pursuant to Section 7.3(b) of the Junior
Subordinated Indenture, dated as of June 22, 2007, among Vestin Realty Mortgage
II, Inc. (the “Company”) and The Bank of New York Trust Company, National
Association, as trustee, that, as of [date], [20__], the Company, if applicable,
and its subsidiaries had the following ratios and balances:
As
of
[Quarterly/Annual Financial Date], 20__
|
Senior
secured indebtedness for borrowed money (“Debt”)
|
$_____
|
|
Senior
unsecured Debt
|
$_____
|
|
Subordinated
Debt
|
$_____
|
|
Total
Debt
|
$
_____
|
|
Ratio
of (x) senior secured and unsecured Debt to (y) total Debt
|
_____%
|
*
A table
describing the quarterly report calculation procedures is provided on page
___
[FOR
FISCAL YEAR END: Attached hereto are the audited
consolidated financial statements (including the balance sheet, income statement
and statement of cash flows, and notes thereto, together with the report
of the
independent accountants thereon) of the Company and its consolidated
subsidiaries for the three years ended [date], 20__ and all required Financial
Statements (as defined in the Purchase Agreement) for the year ended [date],
20__]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited
consolidated and consolidating financial statements (including the balance
sheet
and income statement) of the Company and its consolidated subsidiaries and
all
required Financial Statements (as defined in the Purchase Agreement) for
the
fiscal quarter ended [date], 20__.]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial
position of the Company and its consolidated subsidiaries, and the results
of
operations and changes in financial condition as of the date, and for the
[quarterly] [annual] period ended [date], 20__, and such financial statements
have been prepared in accordance with GAAP consistently applied throughout
the
period involved (except as otherwise noted therein).
There
has
been no monetary default with respect to any indebtedness owed by the Company
and/or its subsidiaries (other than those defaults cured within 30 days of
the
occurrence of the same).
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Financial
Certificate as of this _____ day of _____________, 20__.
By:________________________________
Name: _____________________________
0000
Xxxx
Xxxxxx Xxxx
Xxx
Xxxxx, Xxxxxx 00000
000-000-0000
