EXHIBIT 10.1
EXECUTION COPY
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JUNIOR SUBORDINATED INDENTURE
between
OHI FINANCING, INC.
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Trustee
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Dated as of November 23, 2005
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL 1
APPLICATION .......................................
Section 1.1. Definitions..................................... 1
Section 1.2. Compliance Certificate and Opinions............. 11
Section 1.3. Forms of Documents Delivered to Trustee......... 12
Section 1.4. Acts of Holders................................. 12
Section 1.5. Notices, Etc. to Trustee and Company............ 14
Section 1.6. Notice to Holders; Waiver....................... 14
Section 1.7. Effect of Headings and Table of Contents........ 15
Section 1.8. Successors and Assigns.......................... 15
Section 1.9. Separability Clause............................. 15
Section 1.10. Benefits of Indenture........................... 15
Section 1.11. Governing Law................................... 15
Section 1.12. Submission to Jurisdiction...................... 16
Section 1.13. Non-Business Days............................... 16
ARTICLE II SECURITY FORMS .................................... 16
Section 2.1. Form of Security................................ 16
Section 2.2. Restricted Legend............................... 20
Section 2.3. Form of Trustee's Certificate of Authentication. 22
Section 2.4. Temporary Securities............................ 22
Section 2.5. Definitive Securities........................... 23
ARTICLE III THE SECURITIES .................................... 23
Section 3.1. Payment of Principal and Interest............... 23
Section 3.2. Denominations................................... 26
Section 3.3. Execution, Authentication, Delivery and Dating.. 26
Section 3.4. Global Securities............................... 27
Section 3.5. Registration, Transfer and Exchange Generally... 29
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities 30
Section 3.7. Persons Deemed Owners........................... 31
Section 3.8. Cancellation.................................... 31
Section 3.9. Reserved........................................ 32
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TABLE OF CONTENTS
(continued)
PAGE
Section 3.10. Reserved..................................................... 32
Section 3.11. Agreed Tax Treatment......................................... 32
Section 3.12. CUSIP Numbers................................................ 32
ARTICLE IV SATISFACTION AND DISCHARGE ..................................... 32
Section 4.1. Satisfaction and Discharge of Indenture...................... 32
Section 4.2. Application of Trust Money................................... 33
ARTICLE V REMEDIES ....................................................... 34
Section 5.1. Events of Default............................................ 34
Section 5.2. Acceleration of Maturity; Rescission and Annulment........... 35
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................... 36
Section 5.4. Trustee May File Proofs of Claim............................. 36
Section 5.5. Trustee May Enforce Claim Without Possession of Securities... 37
Section 5.6. Application of Money Collected............................... 37
Section 5.7. Limitation on Suits.......................................... 37
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium,
if any, and Interest; Direct Action by Holders of Preferred
Securities................................................... 38
Section 5.9. Restoration of Rights and Remedies........................... 38
Section 5.10. Rights and Remedies Cumulative............................... 39
Section 5.11. Delay or Omission Not Waiver................................. 39
Section 5.12. Control by Holders........................................... 39
Section 5.13. Waiver of Past Defaults...................................... 39
Section 5.14. Undertaking for Costs........................................ 40
Section 5.15. Waiver of Usury, Stay or Extension Laws...................... 40
ARTICLE VI THE TRUSTEE .................................................... 40
Section 6.1. Corporate Trustee Required................................... 40
Section 6.2. Certain Duties and Responsibilities.......................... 41
Section 6.3. Notice of Defaults........................................... 43
Section 6.4. Certain Rights of Trustee.................................... 43
Section 6.5. May Hold Securities.......................................... 45
Section 6.6. Compensation; Reimbursement; Indemnity....................... 45
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.7. Resignation and Removal; Appointment of Successor.......... 46
Section 6.8. Acceptance of Appointment by Successor..................... 47
Section 6.9. Merger, Conversion, Consolidation or Succession to Business 47
Section 6.10. Not Responsible for Recitals or Issuance of Securities..... 47
Section 6.11. Appointment of Authenticating Agent........................ 48
ARTICLE VII HOLDER'S LISTS AND REPORTS BY COMPANY ........................ 49
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.. 49
Section 7.2. Preservation of Information, Communications to Holders..... 49
Section 7.3. Reports by Company......................................... 50
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR 51
LEASE ........................................................
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms....... 51
Section 8.2. Successor Company Substituted.............................. 51
ARTICLE IX SUPPLEMENTAL INDENTURES ...................................... 52
Section 9.1. Supplemental Indentures without Consent of Holders......... 52
Section 9.2. Supplemental Indentures with Consent of Holders............ 53
Section 9.3. Execution of Supplemental Indentures....................... 53
Section 9.4. Effect of Supplemental Indentures.......................... 54
Section 9.5. Reference in Securities to Supplemental Indentures......... 54
ARTICLE X COVENANTS .................................................... 54
Section 10.1. Payment of Principal, Premium, if any, and Interest........ 54
Section 10.2. Money for Security Payments to be Held in Trust............ 54
Section 10.3. Statement as to Compliance................................. 55
Section 10.4. Calculation Agent.......................................... 55
Section 10.5. Additional Tax Sums........................................ 56
Section 10.6. Additional Covenants....................................... 57
Section 10.7. Waiver of Covenants........................................ 57
Section 10.8. Treatment of Securities.................................... 57
ARTICLE XI REDEMPTION OF SECURITIES ..................................... 58
Section 11.1. Optional Redemption........................................ 58
Section 11.2. Special Event Redemption................................... 58
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TABLE OF CONTENTS
(continued)
PAGE
Section 11.3. Election to Redeem; Notice to Trustee......................... 58
Section 11.4. Selection of Securities to be Redeemed........................ 58
Section 11.5. Notice of Redemption.......................................... 59
Section 11.6. Deposit of Redemption Price................................... 60
Section 11.7. Payment of Securities Called for Redemption................... 60
ARTICLE XII SUBORDINATION OF SECURITIES ..................................... 60
Section 12.1. Securities Subordinate to Senior Debt......................... 60
Section 12.2. No Payment When Senior Debt in Default; Payment Over of 60
Proceeds Upon Dissolution, Etc................................
Section 12.3. Payment Permitted If No Default............................... 62
Section 12.4. Subrogation to Rights of Holders of Senior Debt............... 63
Section 12.5. Provisions Solely to Define Relative Rights................... 63
Section 12.6. Trustee to Effectuate Subordination........................... 63
Section 12.7. No Waiver of Subordination Provisions......................... 64
Section 12.8. Notice to Trustee............................................. 64
Section 12.9. Reliance on Judicial Order or Certificate of Liquidating Agent 65
Section 12.10. Trustee Not Fiduciary for Holders of Senior Debt.............. 65
Section 12.11. Rights of Trustee as Holder of Senior Debt; Preservation of 65
Trustee's Rights..............................................
Section 12.12. Article Applicable to Paying Agents........................... 65
SCHEDULES
Schedule A -- Determination of LIBOR
Exhibit A -- Form of Officer's Financial Certificate
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JUNIOR SUBORDINATED INDENTURE, dated as of November 23, 2005, between OHI
FINANCING, INC., a Delaware corporation (the "Company"), and JPMORGAN CHASE
BANK, 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 Orleans Homebuilders Trust II, 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,
collectively 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.
"Adjusted EBITDA" means, with respect to a Relevant Accounting Period, (i)
GAAP net income, plus (to the extent deducted to determine GAAP net income)
(ii) state and federal income taxes, plus (iii) depreciation and amortization,
plus (iv) interest expensed in the cost of goods sold, plus (v) interest
expensed from operations.
"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).
"Adjusted Interest Rate" has the meaning set forth in Section 3.1(a)(ii).
"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.
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"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.
"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.
"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.
"Consolidated Tangible Net Worth" means, as of any date, (i) the Guarantor's
GAAP net worth, minus (ii) goodwill, patents, trademarks, tradenames,
organization expense, unamortized debt discount and expense, deferred marketing
expenses and other intangibles as shown in the Financials Statements as of the
last day of the Last Reported Fiscal Quarter.
"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: Worldwide Securities Services --- Orleans
Homebuilders Trust II.
"Credit Facilities" means the Revolving Credit Loan Agreement, dated
December 22, 2004, by and among Greenwood Financial, Inc., certain affiliates
and the Guarantor, as borrowers and/or guarantors, the lenders party thereto
and Wachovia Bank, National Association, as Administrative Agent for the
lenders, including any notes, guarantees, collateral and security documents,
instruments and agreements executed in connection therewith (including Hedging
Obligations related to the Debt incurred thereunder), as amended, amended and
restated, supplemented, refinanced or otherwise modified from time to time,
including any agreement or instrument extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
borrowings or other Debt outstanding or available to be borrowed thereunder
and/or refinancing such bank facility with secured or unsecured debt securities
and/or other forms of Debt and/or adding, substituting or deleting parties
thereto (including borrowers, obligors, guarantors, lenders, creditors and/or
agents)) all or
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any portion of the Debt under such agreements, and any successor or replacement
agreement or agreements (including one or more indentures) with the same or any
other agents, creditor, lender or group of creditors or lenders.
"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).
"Debt Service" means, with respect to a Relevant Accounting Period, without
duplication, (i) interest paid (whether expensed or capitalized) as reported on
the Guarantor's Financial Statements (specifically including interest paid with
respect to the Preferred Securities), plus (ii) required principal payments on
any Debt (excluding (a) with respect to any purchase money mortgage debt,
release prices paid upon the conveyance of any Unit, (b) principal payments
with respect to any Credit Facilities and (c) principal payments made to
refinance any Debt, plus (iii) mandatory preferred stock dividends.
"Defaulted Interest" has the meaning specified in Section 3.1.
"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."
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"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.
"XXXXX" has the meaning specified in Section 7.3(c).
"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).
"Financial Statements" mean the reports of financial condition required to
be delivered pursuant to Section 7.3(b).
"Fiscal Quarter" means each of the three (3) month-periods that ends on the
last day of the third (3rd), sixth (6th), ninth (9th), and twelfth (12th)
months of a Fiscal Year.
"Fiscal Year" means the period of twelve (12) consecutive calendar months on
the basis of which the Company reports its income for GAAP purposes, which
twelve (12) month-period currently ends June 30th.
"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 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
5
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.
"Guarantee" means the Parent Guarantee Agreement executed and delivered
contemporaneously with this Indenture by the Guarantor and JPMorgan Chase Bank,
National Association, as the same may be amended from time to time.
"Guarantor" means Orleans Homebuilders, Inc., a Delaware corporation.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to (1) any interest rate swap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates, (2) agreements or arrangements
designed to protect such Person against fluctuations in foreign currency
exchange rates in the conduct of its operations or (3) any forward contract,
commodity swap agreement, commodity option agreement, commodity future
agreement or other similar agreement or other similar arrangement.
"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 Coverage Ratio" has the meaning set forth in Section
3.1(a)(ii)(A).
"Interest Payment Date" means January 30, April 30, July 30 and October 30
of each year, commencing on January 30, 2006, during the term of this
Indenture.
"Interest Period" means each of the three (3) month periods that ends on
each Interest Payment Date.
"Interest Coverage Ratio Trigger Event" has the meaning set forth in Section
3.1(a)(ii)(A).
"Investment Company Act" means the Investment Company Act of 1940 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.
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"Last Reported Fiscal Quarter" means, on any date, the later of (i) the
Fiscal Quarter most recently concluded that ended at least fifty (50) days
before such date or (ii) the most recent Fiscal Quarter with respect to which
the Company has delivered to the Trustee the certificate required by Section
7.3(b).
"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.
"Maturity," when used with respect to any Security, means 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.
"Measuring Quarter" has the meaning specified in Section 3.1(a)(ii).
"Minimum Consolidated Net Worth Amount" means, with respect to any Fiscal
Quarter, the sum of (x) One Hundred Fifteen Million Dollars ($115,000,000),
plus (y) an amount equal to twenty-five percent (25%) of the net income of the
Guarantor earned during such Fiscal Quarter, plus (z) ninety percent (90%) of
the net proceeds of equity interests issued by the Guarantor or any of its
Subsidiaries after the date hereof.
"Minimum Consolidated Net Worth Trigger Event" has the meaning set forth in
Section 3.1(a)(ii)(B).
"Notice of Default" means a written notice of the kind specified in Section
5.1(c).
"Officers' 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 Guarantor
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;
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(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.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"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.
"Proceeding" has the meaning specified in Section 12.2(b).
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"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, the Guarantor, 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 Interest Rate" has the meaning set forth in Section 3.1(a)(ii).
"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).
"Relevant Accounting Period" means, at any time, the period of four (4)
consecutive Fiscal Quarters, the last of which is the Last Reported Fiscal
Quarter.
"Responsible Officer" means, when used with respect to the Trustee, the
officer in the Worldwide Securities Services department of the Trustee having
direct responsibility for the administration of this Indenture.
"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
9
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.
"Special Redemption Price" has the meaning set forth in Section 11.2.
"Stated Maturity" means January 30, 2036.
"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 or the
Guarantor.
"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.
"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, Chase Bank USA, National
Association, as Delaware Trustee and the Administrative Trustees named therein,
contemporaneously with the
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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.
"Wachovia Event of Default" means an Event of Default, as defined in any of
the Credit Facilities, unless the Agent (named in the relevant Credit Facility)
has delivered written notice to the Holders that (a) such Event of Default has
been waived by the Lenders (named in the relevant Credit Facility) or no longer
exists, which notice the Agent shall deliver (if appropriate) promptly
following written request by Master Borrower (named in the relevant Credit
Facility) or (b) the Credit Facilities under which such Event of Default has
occurred have been terminated and all Debt outstanding under such Credit
Facilities has been paid.
"Unit" or "Units" means an attached or detached for-sale single-family
residential housing facility or an individual condominium dwelling.
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 Officers' 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
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(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, Officers' 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
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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
13
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 One
Greenwood Square, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000, Attention:
Chief Financial 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
14
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 Section 5.2, Section 5.8, Section 5.9, Section
5.11, Section 5.13, Section 9.2 and Section 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).
15
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:
OHI FINANCING, INC.
JUNIOR SUBORDINATED NOTE DUE 2036
No. _____________ $ 77,320,000
OHI Financing, Inc., a corporation organized and existing under the laws of
Delaware (hereinafter called the "Company," which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to JPMorgan Chase Bank, National Association, not in its
individual capacity, but solely as Property Trustee for Orleans Homebuilders
Trust II, or registered assigns, the principal sum of Seventy Seven Million
Three Hundred Twenty Thousand Dollars ($77,320,000) on January 30, 2036. The
Company further promises to pay interest on said principal sum from November
23, 2005, 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 January 30,
16
2006, 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 8.61% per annum through
the interest payment date in January 2016 ("Fixed Rate Period") and thereafter
at a variable rate equal to LIBOR plus 3.6% per annum (provided that the
interest rate shall be the Adjusted Interest Rate (as defined in the Indenture)
to the extent provided in Section 3.1(a)(ii) of the Indenture (as defined
below)), 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 8.61% through the
interest payment date in January 2016 and thereafter at a variable rate equal
to LIBOR plus 3.6% 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 (provided that the interest rate shall be
the Adjusted Interest Rate to the extent provided in Section 3.1(a)(ii) of the
Indenture).
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
17
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
November 23, 2005 (the "Indenture"), between the Company and JPMorgan Chase
Bank, 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 November 23, 2005 (as
modified, amended or supplemented from time to time, the "Trust Agreement"),
relating to the Orleans Homebuilders Trust II (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 January 30, 2011 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.
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
18
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.
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 "Qualified
Purchasers" (as such term is defined in the Investment Company Act of 1940, as
amended), 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.
19
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 23 day of November, 2005.
OHI FINANCING, INC.
By:--------------------
Name:
Title:
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
20
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 OR (II) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED PURCHASER" (AS
DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) AND IN COMPLIANCE WITH 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 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
21
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 IT IS
NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF 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."
(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.
Dated:
By: -------------------
Authenticating Agent
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
22
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) (i) Except as provided for in Section 3.1(a)(ii), the unpaid principal
amount of the Securities shall bear interest at a fixed rate equal to 8.61% per
annum through the interest payment date in January 2016 and thereafter at a
variable rate of LIBOR plus 3.6% 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 8.61% per annum through the interest payment date in
January 2016 and thereafter at a variable rate of LIBOR plus 3.6% 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.
(ii) If, as of the last day of any Fiscal Quarter (the "Measuring
Quarter"),
(A) the ratio of the Guarantor's Adjusted EBITDA to Debt Service
for the Relevant Accounting Period (ended as of the last day of the
Fiscal Quarter for which the determination is being made) (the
"Interest Coverage Ratio") as of the last day of at least each of three
of the four consecutive Fiscal Quarters ending with the last day of
such Measuring Quarter, is less than 1.75 to 1 (an "Interest Coverage
Ratio Trigger Event"), or
(B) the Guarantor's Consolidated Tangible Net Worth as of the last
day of at least each of three of the four consecutive Fiscal Quarters
ending with the last day of such Measuring Quarter, is less than the
Minimum Consolidated Net Worth Amount (a "Minimum Consolidated Net
Worth Trigger Event"),
23
then the interest rate as set forth in Section 3.1(a)(i) (the "Regular Interest
Rate") shall be increased by 300 basis points (as adjusted, the "Adjusted
Interest Rate") effective as of the first day of the Interest Period
immediately following the last day of such Measuring Quarter; provided, that
the Adjusted Interest Rate shall cease to apply, and the Regular Interest Rate
shall apply (aa) in the case of an Interest Coverage Ratio Trigger Event,
effective as of the first day of the Interest Period immediately following the
last day of the first Fiscal Quarter thereafter for which the Interest Coverage
Ratio is equal to or greater than 1.75 to 1, and (bb) in the case of a Minimum
Consolidated Net Worth Trigger Event, effective as of the first day of the
Interest Period immediately following the last day of the first Fiscal Quarter
thereafter for which the Guarantor's Consolidated Net Worth is equal to or
greater than the Minimum Consolidated Net Worth Amount. By way of illustration,
if an Interest Coverage Ratio Trigger Event occurred with respect to the Fiscal
Quarter ending June 30, 2006, but the Guarantor's Interest Coverage Ratio was
equal to or greater than 1.75 to 1 with respect to the Fiscal Quarter ending
September 30, 2006, then the Regular Interest Rate would apply for the Interest
Period that ends on the July 30, 2006 Interest Payment Date, the Adjusted
Interest Rate would apply for the Interest Period that ends on the October 30,
2006 Interest Payment Date, and the Regular Interest Rate would apply for the
Interest Period that ends on January 30, 2007 Interest Payment Date.
(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
24
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
25
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 Seventy
Seven Million Three Hundred Twenty Thousand Dollars ($77,320,000) 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.
(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.
26
(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
27
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
28
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 (g): (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
29
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 or 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 a "Qualified Purchaser" as
such term is defined in section 2(a)(51) of the Investment Company 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 Company and 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 Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them 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
30
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 U.S. 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
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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
32
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 Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the 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(e) shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of Section 10.2(e), 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
33
(b) default in the payment of the principal of or any premium on any
Security at its Maturity; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or the Purchase Agreement (except that (x) a
breach of a warranty in the Purchase Agreement shall constitute an Event of
Default hereunder only if such warranty shall prove to be untrue in any
material respect (without giving effect to any materiality qualifier in any
such warranty), and (y) a breach of a covenant contained in Section 6(a),
Section 6(b), Section 6(h), Section 6(i), Article 7 or Article 8 of the
Purchase Agreement shall constitute an Event of Default hereunder only if such
breach is a material breach of such covenant) 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;
(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;
(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; or
(g) the Adjusted Interest Rate is in effect for four (4) consecutive
Interest Periods.
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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 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) 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.
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SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that if:
(i) default is made in 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) default is made in 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 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 Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities 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.
36
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 or the subordination provisions of the
Guarantee;
THIRD: Subject to Article XII and the subordination provisions of the
Guarantee, 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;
37
(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.
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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.
39
(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
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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;
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(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) relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee under this Indenture; 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 holders 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
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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
43
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 Officers' 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.
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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.
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(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 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
46
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
47
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:
48
JPMORGAN CHASE BANK, 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.
49
SECTION 7.3. Reports by Company.
(a) The Company shall furnish, or shall cause the Guarantor to 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).
(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,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx Xxxxx (or such other
address as designated by Taberna Capital Management, LLC) 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
Capital Management, LLC), 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 Guarantor and not later than ninety (90)
days after the end of each fiscal year of the Guarantor. The delivery
requirements under this Section 7.3(b) may be satisfied by compliance with
Section 8.16(b) of the Trust Agreement or Section 6(h) of the Purchase
Agreement.
(c) If the Guarantor 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, if applicable. The Trustee shall
have no duty to search for or obtain any electronic or other filings that the
Guarantor 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 Officers' 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
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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 Officers' 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 Officers' 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
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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, 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 (c) 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 (d) shall not
adversely affect in any material respect the interests of any Holders or the
holders of the Preferred Securities.
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
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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;
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 Officers' 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
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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.
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(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 terms 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 one hundred twenty (120)
days after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate covering the preceding fiscal 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
55
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
56
respect to, any of the Company's Equity Interests, (ii) vote in favor of or
permit or otherwise allow any of the Company's 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, except with
respect to pari passu debt, payments made on a pari passu basis with payments
made with respect 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) [Reserved]
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, and will cause the Guarantor to 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 U.S. federal income tax purposes. All payments in respect of the Securities
will be made free and clear of U.S. 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
U.S. federal income tax purposes, or any other applicable form establishing a
complete exemption from U.S. withholding tax.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Optional Redemption.
The Company may, at its option, on any Interest Payment Date, on or after
January 30, 2011, 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 (the "Optional Redemption Price").
SECTION 11.2. Special Event Redemption.
Prior to January 30, 2011, 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 Officers' 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
58
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 not later than the thirtieth (30th)
day, and not earlier than the sixtieth (60th) day, prior to the Redemption Date
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 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;
and
(v) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
(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.
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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
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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. Notwithstanding anything to the
contrary in this Section 12.2(a), the provisions of this Section 12.2(a) shall
also apply for at least 180 days following receipt of notice by the Holders of
any Wachovia Event of Default, unless and until the Holders have received
written notice as provided in clause (a) or (b) of the definition of Wachovia
Event of Default (contained herein) that the Wachovia Event of Default has been
waived or the applicable Credit Facilities have been terminated and all Debt
outstanding thereunder has been paid. For at least 180 days following the
receipt of notice by the Holders of any Wachovia Event of Default, the Holders
shall not initiate or maintain any action to collect on the Securities (whether
from the Company or the Guarantor) and shall not accept any payment of any
principal or interest on the Securities. For at least 180 days following the
receipt of notice by the Trustee of any Wachovia Event of Default, the Trustee
shall not initiate or maintain any action to collect on the Securities (whether
from the Company or the Guarantor) and shall not accept any payment of any
principal or interest on the Securities. For the avoidance of doubt, it is
understood that any notice of a Wachovia Event of Default received by the
Holders or the Trustee, as the case may be, during any 180-day period referred
to in this Section 12.2(a) shall not trigger a new 180-day period, and the
Holders or the Trustee, as the case may be, shall not be required to refrain
from initiating or maintaining any such action for a period in excess of 180-
days in the aggregate for each Event of Default.
(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
61
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, (y) 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 or (z) it had not received
notice of a Wachovia Event of Default.
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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, except that
with respect to this clause (c), for 180 days following receipt of notice by
the Holders (whether such notice is provided by the Company, the Guarantor or
the Trustee) of any Wachovia Event of Default, neither the Holders nor the
Trustee shall initiate or maintain any action to collect on the Securities
(whether from the Company or the Guarantor).
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.
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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.
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
64
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.
* * * *
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.
* * * *
65
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
OHI FINANCING, INC.
By: XXXXXX X. XXXXXXXXXX
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Secretary and Treasurer
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Trustee
By: XXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
66
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, as obtained by the
Calculation Agent from Bloomberg Financial Markets Commodities News, for three-
month Eurodollar deposits that appears on Dow Xxxxx Telerate Page 3750 (as
defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions), or such other page as may
replace such Page 3750, as of 11:00 a.m. (London time) on such LIBOR
Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not appear on Dow
Xxxxx 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
of the Reference Banks (as defined below) to leading banks in the London
interbank market for three-month Eurodollar deposits in an amount determined by
the Calculation Agent by reference to requests for quotations as of
approximately 11:00 a.m. (London time) on the LIBOR Determination Date 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 that
leading banks in the City of New York selected by the Calculation Agent are
quoting on the relevant LIBOR Determination Date for three-month Eurodollar
deposits in an amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London interbank market;
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 on which commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in London.
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