SUBORDINATED INDENTURE between REDWOOD TRUST, INC. and WILMINGTON TRUST COMPANY, as Trustee Dated as of May 23, 2007
between
REDWOOD
TRUST, INC.
and
WILMINGTON
TRUST COMPANY,
as
Trustee
________________
Dated
as
of May 23, 2007
________________
TABLE
OF CONTENTS
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Page
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ARTICLE
I Definitions and Other Provisions of General Application
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1
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SECTION
1.1.
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Definitions.
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1
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SECTION
1.2.
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Compliance
Certificate and Opinions.
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8
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SECTION
1.3.
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Forms
of Documents Delivered to Trustee.
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9
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SECTION
1.4.
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Acts
of Holders.
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9
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SECTION
1.5.
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Notices,
Etc. to Trustee and Company.
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11
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SECTION
1.6.
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Notice
to Holders; Waiver.
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12
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SECTION
1.7.
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Effect
of Headings and Table of Contents.
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12
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SECTION
1.8.
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Successors
and Assigns.
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12
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SECTION
1.9.
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Separability
Clause.
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12
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SECTION
1.10.
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Benefits
of Indenture.
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12
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SECTION
1.11.
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Governing
Law.
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13
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SECTION
1.12.
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Submission
to Jurisdiction.
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13
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SECTION
1.13.
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Non-Business
Days.
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13
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ARTICLE
II Security Forms
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13
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SECTION
2.1.
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Form
of Security.
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13
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SECTION
2.2.
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Restricted
Legend.
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18
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SECTION
2.3.
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Form
of Trustee’s Certificate of Authentication.
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20
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SECTION
2.4.
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Temporary
Securities.
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20
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SECTION
2.5.
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Definitive
Securities.
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21
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ARTICLE
III The Securities
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21
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SECTION
3.1.
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Payment
of Principal and Interest.
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21
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SECTION
3.2.
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Denominations.
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23
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SECTION
3.3.
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Execution,
Authentication, Delivery and Dating.
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23
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SECTION
3.4.
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Global
Securities.
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24
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SECTION
3.5.
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Registration,
Transfer and Exchange Generally.
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26
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SECTION
3.6.
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Mutilated,
Destroyed, Lost and Stolen Securities.
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27
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SECTION
3.7.
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Persons
Deemed Owners.
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28
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SECTION
3.8.
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Cancellation.
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28
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SECTION
3.9.
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Withholding
Tax.
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29
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SECTION
3.10.
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Reserved.
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29
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SECTION
3.11.
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Agreed
Tax Treatment.
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29
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SECTION
3.12.
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CUSIP
Numbers.
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29
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ARTICLE
IV Satisfaction and Discharge
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30
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SECTION
4.1.
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Satisfaction
and Discharge of Indenture.
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30
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SECTION
4.2.
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Application
of Trust Money.
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31
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ARTICLE
V Remedies
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31
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SECTION
5.1.
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Events
of Default.
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31
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SECTION
5.2.
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Acceleration
of Maturity; Rescission and Annulment.
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32
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SECTION
5.3.
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Repurchase
at the Option of Holders upon Change of Control.
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33
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SECTION
5.4.
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Collection
of Indebtedness and Suits for Enforcement by Trustee.
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35
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SECTION
5.5.
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Trustee
May File Proofs of Claim.
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36
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SECTION
5.6.
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Trustee
May Enforce Claim Without Possession of Securities.
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36
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SECTION
5.7.
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Application
of Money Collected.
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37
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SECTION
5.8.
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Limitation
on Suits.
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37
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SECTION
5.9.
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Unconditional
Right of Holders to Receive Principal, Premium, if any, and
Interest.
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38
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SECTION
5.10.
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Restoration
of Rights and Remedies.
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38
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SECTION
5.11.
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Rights
and Remedies Cumulative.
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38
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SECTION
5.12.
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Delay
or Omission Not Waiver.
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38
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SECTION
5.13.
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Control
by Holders.
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38
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SECTION
5.14.
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Waiver
of Past Defaults.
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39
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SECTION
5.15.
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Undertaking
for Costs.
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39
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SECTION
5.16.
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Waiver
of Usury, Stay or Extension Laws.
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40
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ARTICLE
VI The Trustee
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40
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SECTION
6.1.
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Corporate
Trustee Required.
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40
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SECTION
6.2.
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Certain
Duties and Responsibilities.
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40
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SECTION
6.3.
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Notice
of Defaults.
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41
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SECTION
6.4.
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Certain
Rights of Trustee.
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42
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SECTION
6.5.
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May
Hold Securities.
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44
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SECTION
6.6.
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Compensation;
Reimbursement; Indemnity.
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44
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SECTION
6.7.
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Resignation
and Removal; Appointment of Successor.
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45
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SECTION
6.8.
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Acceptance
of Appointment by Successor.
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46
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SECTION
6.9.
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Merger,
Conversion, Consolidation or Succession to Business.
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46
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SECTION
6.10.
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Not
Responsible for Recitals or Issuance of Securities.
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46
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SECTION
6.11.
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Appointment
of Authenticating Agent.
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47
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ARTICLE
VII Holder’s Lists and Reports by Company
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48
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SECTION
7.1.
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Company
to Furnish Trustee Names and Addresses of Holders.
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48
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SECTION
7.2.
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Preservation
of Information, Communications to Holders.
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48
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SECTION
7.3.
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Reports
by Company.
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49
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ARTICLE
VIII Consolidation, Merger, Conveyance, Transfer or Lease
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50
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SECTION
8.1.
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Company
May Consolidate, Etc., Only on Certain Terms.
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50
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SECTION
8.2.
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Successor
Company Substituted.
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50
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ARTICLE
IX Supplemental Indentures
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51
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SECTION
9.1.
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Supplemental
Indentures without Consent of Holders.
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51
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SECTION
9.2.
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Supplemental
Indentures with Consent of Holders.
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52
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SECTION
9.3.
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Execution
of Supplemental Indentures.
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52
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SECTION
9.4.
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Effect
of Supplemental Indentures.
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53
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SECTION
9.5.
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Reference
in Securities to Supplemental Indentures.
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53
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ARTICLE
X Covenants
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53
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SECTION
10.1.
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Payment
of Principal, Premium, if any, and Interest.
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53
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SECTION
10.2.
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Money
for Security Payments to be Held in Trust.
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53
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SECTION
10.3.
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Statement
as to Compliance.
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54
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SECTION
10.4.
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Calculation
Agent.
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54
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SECTION
10.5.
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Reserved
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SECTION
10.6.
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Additional
Covenants.
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55
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SECTION
10.7.
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Waiver
of Covenants.
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56
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SECTION
10.8.
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Treatment
of Securities.
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56
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SECTION
10.9.
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Limitation
of Issuance of Securities.
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57
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ARTICLE
XI Redemption and Put of Securities
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57
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SECTION
11.1.
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Optional
Redemption.
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57
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SECTION
11.2.
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Special
Event Redemption.
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57
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SECTION
11.3.
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Election
to Redeem; Notice to Trustee.
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58
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SECTION
11.4.
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Selection
of Securities to be Redeemed.
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58
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SECTION
11.5.
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Notice
of Redemption.
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58
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SECTION
11.6.
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Deposit
of Redemption Price.
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59
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SECTION
11.7.
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Payment
of Securities Called for Redemption.
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59
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ARTICLE
XII Subordination of Securities
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60
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SECTION
12.1.
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Securities
Subordinate to Senior Debt.
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60
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SECTION
12.2.
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No
Payment When Senior Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc.
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60
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SECTION
12.3.
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Payment
Permitted If No Default.
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62
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SECTION
12.4.
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Subrogation
to Rights of Holders of Senior Debt.
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62
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SECTION
12.5.
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Provisions
Solely to Define Relative Rights.
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62
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SECTION
12.6.
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Trustee
to Effectuate Subordination.
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63
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SECTION
12.7.
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No
Waiver of Subordination Provisions.
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63
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SECTION
12.8.
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Notice
to Trustee.
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63
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SECTION
12.9.
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Reliance
on Judicial Order or Certificate of Liquidating Agent.
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64
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SECTION
12.10.
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Trustee
Not Fiduciary for Holders of Senior Debt.
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64
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SECTION
12.11.
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Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
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64
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SECTION
12.12.
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Article
Applicable to Paying Agents
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65
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SCHEDULES
Schedule
A—Determination of LIBOR
Exhibit
A—Form of Officer’s Financial Certificate
Subordinated
Indenture,
dated
as of May 23, 2007, between Redwood
Trust, Inc.,
a
Maryland corporation (the “Company”),
and
Wilmington
Trust Company, a
Delaware banking corporation, 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 subordinated notes (the “Securities”)
issued
to evidence loans made to the Company by the Purchaser (as defined in the
Purchase Agreement, dated as of even date herewith) 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.
“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.
“Affiliate”
of any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control,” when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Applicable
Depositary Procedures”
means,
with respect to any transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures of the Depositary for
such
Security, in each case to the extent applicable to such transaction and as
in
effect from time to time.
“Authenticating
Agent”
means
any Person authorized by the Trustee pursuant to Section
6.11
to act
on behalf of the Trustee to authenticate the Securities.
“Board
of Directors”
means
the board of directors of the Company or any duly authorized committee of that
board.
“Board
Resolution”
means a
copy of a resolution certified by the Secretary or an Assistant Secretary of
the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
“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.
“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.
2
“Company
Request”
and
“Company
Order”
mean,
respectively, the written request or order signed in the name of the Company
by
its Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its Chief Executive Officer, President or a Vice President, and
by
its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
Notwithstanding the foregoing, a Company Order for the purposes of
authentication and delivery of the Securities pursuant to Section
3.3(a)
shall
require the signature of only one of the above referenced officers of the
Company.
“Corporate
Trust Office”
means
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
this
Indenture is located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration - Redwood
Trust, Inc.
“Debt”
means,
with respect to any Person, whether recourse is to all or a portion of the
assets of such Person, whether currently existing or hereafter incurred and
whether or not contingent and without duplication, (i) every obligation of
such
Person for money borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of such Person with respect to letters
of
credit, bankers’ acceptances or similar facilities issued for the account of
such Person; (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or other accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends
of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or
otherwise; and (viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses (i) through
(vii).
“Defaulted
Interest”
has the
meaning specified in Section
3.1(c).
“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.
“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.
3
“▇▇▇▇▇”
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).
“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 deduction
from
the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Government Obligation or the
specific payment of principal or interest evidenced by such depositary
receipt.
“Holder”
means a
Person in whose name a Security is registered in the Securities
Register.
“Indenture”
means
this instrument as originally executed or as it may from time to time be amended
or supplemented by one or more amendments or indentures supplemental hereto
entered into pursuant to the applicable provisions hereof.
“Interest
Payment Date” means
January 30, April 30, July 30 and October 30 of each year, commencing on July
30, 2007, during the term of this Indenture.
“Investment
Company Act”
means
the Investment Company Act of 1940 or any successor statute thereto, in each
case as amended from time to time.
4
“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 Company is or, within ninety (90) days of the date
of such opinion will be, considered an “investment company” that is required to
be registered under the Investment Company Act, which change or prospective
change becomes effective or would become effective, as the case may be, on
or
after the date of the issuance of the Securities.
“LIBOR”
has the
meaning specified in Schedule
A.
“LIBOR
Business Day”
has the
meaning specified in Schedule
A.
“LIBOR
Determination Date”
has the
meaning specified in Schedule
A.
“Maturity”
means,
when used with respect to any Security, the date on which the principal of
such
Security or any installment of principal becomes due and payable as therein
or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
“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 Company and delivered to the Trustee.
“Opinion
of Counsel”
means a
written opinion of counsel, who may be counsel for or an employee of the Company
or any Affiliate of the Company.
“Optional
Redemption Price”
has
the
meaning set forth in Section
11.1.
“Original
Issue Date” means
the
date of original issuance of each Security.
“Outstanding”
means,
when used in reference to any Securities, as of the date of determination,
all
Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; provided,
that,
if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
5
(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.
“Paying
Agent” means
the
Trustee or any Person (other than the Company or any Affiliate of the Company)
authorized by the Company to pay the principal of or any premium or interest
on,
or other amounts in respect of, any Securities on behalf of the
Company.
“Person”
means
a
legal person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, company, limited liability company,
trust, unincorporated association, or government, or any agency or political
subdivision thereof, or any other entity of whatever nature.
“Place
of Payment”
means,
with respect to the Securities, the Corporate Trust Office of the
Trustee.
“Predecessor
Security”
of any
particular Security means every previous Security evidencing all or a portion
of
the same debt as that evidenced by such particular Security. For the purposes
of
this definition, any security authenticated and delivered under Section
3.6
in lieu
of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.
“Proceeding”
has the
meaning specified in Section
12.2(b).
“Purchase
Agreement”
means
the Purchase Agreement executed and delivered contemporaneously with this
Indenture by the Company and the purchaser 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.
6
“Reference
Banks”
has
the
meaning specified in Schedule
A.
“Regular
Record Date”
for the
interest payable on any Interest Payment Date with respect to the Securities
means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).
“Responsible
Officer”
means,
when used with respect to the Trustee, the officer in the Corporate Trust
Administration department of the Trustee having direct responsibility for the
administration of this Indenture.
“Rights
Plan” means
a
plan of the Company providing for the issuance by the Company to all holders
of
its Equity Interests of rights entitling the holders thereof to subscribe for
or
purchase Equity Interests or any class or series of Equity Interests in the
Company which rights (i) are deemed to be transferred with such Equity Interests
and (ii) are also issued in respect of future issuances of such Equity
Interests, in each case until the occurrence of a specified event or
events.
“Securities”
or
“Security”
means
any debt securities or debt security, as the case may be, authenticated and
delivered under this Indenture.
“Securities
Act”
means
the Securities Act of 1933 or any successor statute thereto, in each case as
amended from time to time.
“Securities
Register”
and
“Securities
Registrar”
have the
respective meanings specified in Section
3.5.
“Senior
Debt”
means
the principal of and any premium and interest on (including interest accruing
on
or after the filing of any petition in bankruptcy or for reorganization relating
to the Company, whether or not such claim for post-petition interest is allowed
in such proceeding) all Debt of the Company, whether incurred on or prior to
the
date of this Indenture or thereafter incurred, unless it is provided in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, that such obligations are not superior in right of payment to
the
Securities issued under this Indenture; provided,
that
Senior Debt shall not be deemed to include any
(i)
debt or (ii) other debt securities (and guarantees, if any, in respect of such
debt securities) issued to any trust (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, including,
but not limited to the trust preferred securities issued by Redwood Capital
Trust I; provided, that the Securities shall be senior in right of payment
to
any junior subordinated debt securities issued by the Company, including,
but not limited to, the debt securities issued by Redwood Capital Trust I and
by
any other financing entity (as defined herein).
“Special
Event”
means
the occurrence of an Investment Company Event.
7
“Special
Record Date”
for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant
to
Section
3.1(c)(i).
“Special
Redemption Price”
has
the
meaning set forth in Section
11.2.
“Stated
Maturity”
means
July 30, 2037.
“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.
“Substantially
Similar Securities”
has
the
meaning set forth in Section
10.9.
“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.
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;
8
(iii) a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a
statement as to whether, in the opinion of such individual, such condition
or
covenant has been complied with.
SECTION
1.3. Forms
of Documents Delivered to Trustee.
(a) In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or after reasonable inquiry should
know,
that the certificate or opinion or representations with respect to matters
upon
which his or her certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or after reasonable inquiry should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(d) Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, 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 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.
9
(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.
10
(g) The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making
of
(i) any Notice of Default, (ii) any declaration of acceleration or rescission
or
annulment thereof referred to in Section
5.2,
(iii)
any request to institute proceedings referred to in Section
5.7(b)
or (iv)
any direction referred to in Section
5.12.
If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to
join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided,
that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph shall
be
construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect). Promptly after any record date
is
set pursuant to this paragraph, the Trustee, at the Company’s expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section
1.6.
(h) With
respect to any record date set pursuant to paragraph (f) or (g) of this
Section
1.4,
the
party hereto that sets such record date may designate any day as the “Expiration
Date”
and
from
time to time may change the Expiration Date to any earlier or later day;
provided,
that no
such change shall be effective unless notice of the proposed new Expiration
Date
is given to the other party hereto in writing, and to each Holder of Securities
in the manner set forth in Section
1.6,
on or
prior to the existing Expiration Date. If an Expiration Date is not designated
with respect to any record date set pursuant to this Section
1.4,
the
party hereto that set such record date shall be deemed to have initially
designated the ninetieth (90th)
day
after such record date as the Expiration Date with respect thereto, subject
to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the one
hundred eightieth (180th)
day
after the applicable record date.
SECTION
1.5. Notices,
Etc. to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver, Act of
Holders, or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the
Trustee by any Holder, any holder of 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 Securities shall be
sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Company addressed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or at any other
address previously furnished in writing to the Trustee by the
Company.
11
SECTION
1.6. Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Holder affected by such event
to the address of such Holder as it appears in the Securities Register, not
later than the latest date (if any), and not earlier than the earliest date
(if
any), prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when
said
notice is required to be given pursuant to any provision of this Indenture,
then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice. In any case where notice
to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
SECTION
1.7. Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.
SECTION
1.8. Successors
and Assigns.
This
Indenture shall be binding upon and shall inure to the benefit of any successor
to the Company and the Trustee, including any successor by operation of law.
Except in connection with a transaction involving the Company that is permitted
under Article
VIII
and
pursuant to which the assignee agrees in writing to perform the Company’s
obligations hereunder, the Company shall not assign its obligations
hereunder.
SECTION
1.9. Separability
Clause.
If
any
provision in this Indenture or in the Securities shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and there
shall
be deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
SECTION
1.10. Benefits
of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt and the Holders of the Securities any benefit or any
legal or equitable right, remedy or claim under this Indenture.
12
SECTION
1.11. Governing
Law.
This
Indenture and the rights and obligations of each of the Holders, the Company
and
the Trustee shall be construed and enforced in accordance with and governed
by
the laws of the State of New York without reference to its conflict of laws
provisions (other than section 5-1401 of the General Obligations
Law).
SECTION
1.12. Submission
to Jurisdiction.
ANY
LEGAL
ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF
THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY
ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.
SECTION
1.13. Non-Business
Days.
If
any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest, premium, if any, or principal
or other amounts in respect of such Security shall not be made on such date,
but
shall be made on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, until such next succeeding Business Day) except that, if such
Business Day falls in the next succeeding calendar year, such payment shall
be
made on the immediately preceding Business Day, in each case with the same
force
and effect as if made on the Interest Payment Date or Redemption Date or at
the
Stated Maturity.
ARTICLE
II
Security
Forms
SECTION
2.1. Form
of Security.
Any
Security issued hereunder shall be in substantially the following
form:
13
REDWOOD
TRUST, INC.
Subordinated
Notes due 2037
| No. _____________ |
$
____________
|
Redwood
Trust, Inc., a corporation organized and existing under the laws of the State
of
Maryland (hereinafter called the “Company,”
which
term includes any successor Person under the Indenture hereinafter referred
to),
for value received, hereby promises to pay to Cede & Co. as nominee on
behalf of The Depository Trust Company, or registered assigns, the principal
sum
of Fifty Million Dollars ($50,000,000) or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture on July
30,
2037. The Company further promises to pay interest on said principal sum from
May 23, 2007, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, quarterly in arrears on January 30, April
30, July 30 and October 30 of each year, commencing on July 30, 2007, or if
any
such day is not a Business Day, on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed
for
the period from and after such Interest Payment Date until such next succeeding
Business Day), except that, if such Business Day falls in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on the Interest
Payment Date, at a variable rate equal to LIBOR plus 2.25% per annum, 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 any overdue installment of interest
shall bear Additional Interest at a variable rate equal to LIBOR plus 2.25%
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.
The
amount of interest payable for any period shall be computed on the basis of
a
360-day year and the actual number of days elapsed in the relevant Interest
Payment 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 registered holder hereof
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
Trustee, the payment of the principal of (and premium, if any) and interest
(including any overdue installment of interest) on this Security will be made
at
such place and to such account as may be designated by the Trustee.
14
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 Subordinated Indenture, dated as of May 23, 2007 (the “Indenture”),
between the Company and Wilmington Trust Company, 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 and the Holders of
the
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 shall have the meanings
assigned to them in the Indenture.
The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to
the
Trustee) on or after July 30, 2012 and
subject to the terms and conditions of Article
XI
of the
Indenture, redeem this Security in whole at any time or in part from time to
time at a Redemption Price equal to one hundred percent (100%) of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, through but excluding the date
fixed as the Redemption Date.
15
In
addition, upon the occurrence and during the continuation of a Special Event,
the Company may, at its option and in accordance with the Indenture, 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:
|
TIME
PERIOD
|
PERCENTAGE
|
|
May
23, 2007 - July 29, 2008
|
107.5%
|
|
July
30, 2008 - July 29, 2009
|
105%
|
|
July
30, 2009 - July 29, 2010
|
103.75%
|
|
July
30, 2010 - July 29, 2011
|
103%
|
|
July
30, 2011 - July 29, 2012
|
101.5%
|
|
July
30, 2012 and thereafter
|
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
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 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.
16
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is restricted to transfers to (i) the Company,
(ii) “Qualified Institutional Buyers” (as defined in Rule 144A under the
Securities Act of 1933, as amended (the “Securities
Act”))
who
are also “Qualified Purchasers” (as such term is defined in the Investment
Company Act of 1940, as amended), (iii) outside the United States in an offshore
transaction in accordance with Regulation S under the Securities Act, (iv)
pursuant to an effective registration statement under the Securities Act or
(v)
pursuant to another exemption from registration under the Securities Act and
is
registrable in the Securities Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained
for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar and
duly executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Securities, of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the
designated transferee or transferees.
The
Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any expense,
tax or other governmental charge payable in connection therewith.
The
Company, the Trustee and any agent of the Company or the Trustee shall 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 to treat this Security as indebtedness for United States federal,
state and local tax purposes, unless and until required otherwise by an
applicable taxing authority.
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 ____ day of __________, 20__.
Redwood
Trust, Inc.
By:____________________________________
Name:
Title:
17
SECTION
2.2. Restricted
Legend.
(a) Any
Security issued hereunder shall bear a legend in substantially the following
form:
“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”)
OR A
NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE
NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES
ACT”),
AND
SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER
OF THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT.
THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A OF THE
SECURITIES ACT) AND A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED), (III) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, OR (V) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT
OF
THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
18
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 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 UNLESS SUCH ACQUIROR
OR
HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U. S. DEPARTMENT
OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-28, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS ACQUISITION AND HOLDING OF THIS SECURITY,
OR ANY INTEREST HEREIN, ARE NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION
2975 OF THE CODE WITH RESPECT TO SUCH ACQUISITION AND HOLDING. ANY PURCHASER
OR
HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN
EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR OTHER
PLAN
TO WHICH TITLE 1 OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE
OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN, OR ANY OTHER PERSON OR ENTITY USING THE “PLAN
ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE OR
(ii) SUCH ACQUISITION OR HOLDING WILL NOT RESULT IN A PROHBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTION
RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.”
19
(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: |
WILMINGTON
TRUST COMPANY,
|
|
not
in its individual capacity but solely as Trustee
|
|
|
By:
__________________________________
|
|
| Authorized Signatory |
SECTION
2.4. Temporary
Securities.
(a) Pending
the preparation of definitive Securities, the Company may execute and, upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive Securities
in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may
determine, as evidenced by their execution of such Securities.
(b) If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of
the Company designated for that purpose without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of any authorized denominations
having the same Original Issue Date and Stated Maturity and having the same
terms as such temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture
as
definitive Securities.
20
SECTION
2.5. Definitive
Securities.
The
Securities issued on the Original Issue Date shall be in definitive form. The
definitive Securities shall be printed, lithographed or engraved, or produced
by
any combination of these methods, if required by any securities exchange on
which the Securities may be listed, on a steel engraved border or steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined
by
the officers executing such Securities, as evidenced by their execution of
such
Securities.
ARTICLE
III
The
Securities
SECTION
3.1. Payment
of Principal and Interest.
(a) The
unpaid principal amount of the Securities shall bear interest at a variable
rate
of LIBOR plus 2.25% 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, and any overdue installment of interest shall bear
Additional Interest at the rate equal to a variable rate
of
LIBOR plus 2.25% 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.
(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 in accordance with Section
3.1(e)
hereof.
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:
21
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment
of
such Defaulted Interest (a “Special
Record Date”),
which
shall be fixed in the following manner. At least thirty (30) days prior to
the
date of the proposed payment, the Company shall notify the Trustee in writing
of
the amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest. Thereupon the Trustee shall fix
a
Special Record Date for the payment of such Defaulted Interest, which shall
be
not more than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment and not less than ten (10) days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Security at the address of such
Holder as it appears in the Securities Register not less than ten (10) days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered on such
Special Record Date; or
(ii) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities may be listed, traded or quoted and,
upon such notice as may be required by such exchange or automated quotation
system (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(d) Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates. Interest payments for the Securities
shall be computed and paid 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 registered holder thereof 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
Trustee, the payment of the principal of (and premium, if any) and interest
(including any overdue installment of interest) on this Security will be made
at
such place and to such account as may be designated by the Trustee.
22
(f) The
parties hereto acknowledge and agree that the holders of the Securities have
certain rights to direct the Company to modify the Interest Payment Dates and
corresponding Redemption Date and Stated Maturity of the Securities or a portion
of the Securities pursuant to the Purchase Agreement. In the event any such
modifications are made to the Securities or a portion of the Securities,
appropriate changes to the form of Security set forth in Article
II
hereof
shall be made prior to the issuance and authentication of new or replacement
Securities. Any such modification of the Interest Payment Date and corresponding
Redemption Date and Stated Maturity with respect to any Securities or tranche
of
Securities shall not require or be subject to the consent of the
Trustee.
(g) Subject
to the foregoing provisions of this Section
3.1,
each
Security delivered under this Indenture upon transfer of or in exchange for
or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Security.
SECTION
3.2. Denominations.
The
Securities shall be in registered form without coupons and shall be issuable
in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof.
SECTION
3.3. Execution,
Authentication, Delivery and Dating.
(a) At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities in an aggregate principal amount (including
all then Outstanding Securities) not in excess of Fifty Million Dollars
($50,000,000) 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.
23
(b) The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. The signature of any of these officers
on the Securities may be manual or facsimile. Securities bearing the manual
or
facsimile signatures of individuals who were at any time the proper officers
of
the Company shall bind the Company, notwithstanding that such individuals or
any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
(c) No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by
the
Trustee by the manual signature of one of its authorized signatories, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation
as
provided in Section
3.8,
for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
(d) Each
Security shall be dated the date of its authentication.
SECTION
3.4. Global
Securities.
(a) Upon
the
election of the Holder on or 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.
24
(c) If
any
Global Security is to be exchanged for other Securities or canceled in part,
or
if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall
be
so surrendered for exchange or cancellation as provided in this Article
III
or (ii)
the principal amount thereof shall be reduced or increased by an amount equal
to
(x) the portion thereof to be so exchanged or canceled, or (y) the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on
the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Security by the Depositary,
accompanied by registration instructions, the Company shall execute and the
Trustee shall authenticate and deliver any Securities issuable in exchange
for
such Global Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any delay
in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof shall
be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) [Reserved].
(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.
25
(g) The
rights of owners of beneficial interests in a Global Security shall be exercised
only through the Depositary and shall be limited to those established by law
and
agreements between such owners and the Depositary and/or its Depositary
Participants.
(h) No
holder
of any beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever. None of the Company, the Trustee nor any agent
of
the Company or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or
impair, as between a Depositary and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of any Security.
SECTION
3.5. Registration,
Transfer and Exchange Generally.
(a) The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
“Securities
Register”)
in
which the registrar and transfer agent with respect to the Securities (the
“Securities
Registrar”),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Securities and of transfers and exchanges of Securities.
The
Trustee shall at all times also be the Securities Registrar. The provisions
of
Article
VI
shall
apply to the Trustee in its role as Securities Registrar.
(b) Subject
to compliance with Section
2.2(b),
upon
surrender for registration of transfer of any Security at the offices or
agencies of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations of like tenor and aggregate principal amount.
(c) At
the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute,
and
the Trustee shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive.
(d) All
Securities issued upon any transfer or exchange of Securities shall be the
valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
(e) Every
Security presented or surrendered for transfer or exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or such Holder’s attorney duly
authorized in writing.
26
(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
expense, tax or other governmental charge that may be imposed in connection
with
any transfer or exchange of Securities.
(g) Neither
the Company nor the Trustee shall be required pursuant to the provisions of
this
Section
3.5:
(i) to
issue, register the transfer of or exchange any Security during a period
beginning at the opening of business fifteen (15) days before the day of
selection for redemption of Securities pursuant to Article
XI
and
ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be
redeemed.
(h) The
Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration of transfer or exchange. The
Company initially designates the Corporate Trust Office as its office and agency
for such purposes. The Company shall give prompt written notice to the Trustee
and to the Holders of any change in the location of any such office or
agency.
(i) The
Securities may only be transferred to (i) the Company, (ii) a “qualified
institutional buyer” (as defined in Rule 144A of the Securities Act) who is also
a “Qualified Purchaser” (as such term is defined in Section 2(a)(51) of the
Investment Company Act), (iii) outside the United States in an offshore
transaction in accordance with Regulation S under the Securities Act, (iv)
pursuant to an effective registration statement under the Securities Act or
(v)
pursuant to another exemption form registration under the Securities
Act.
(j) Neither
the Trustee nor the Securities Registrar shall be responsible for ascertaining
whether any transfer hereunder complies with the registration provisions of
or
any exemptions from the Securities Act, applicable state securities laws or
the
applicable laws of any other jurisdiction, ERISA, the Code, or the Investment
Company Act; provided,
that if
a certificate is specifically required by the express terms of this Section
3.5
to be
delivered to the Trustee or the Securities Registrar by a Holder or transferee
of a Security, the Trustee and the Securities Registrar shall be under a duty
to
receive and examine the same to determine whether or not the certificate
substantially conforms on its face to the requirements of this Indenture and
shall promptly notify the party delivering the same if such certificate does
not
comply with such terms.
SECTION
3.6. Mutilated,
Destroyed, Lost and Stolen Securities.
(a) If
any
mutilated Security is surrendered to the Trustee together with such security
or
indemnity as may be required by the Trustee to save the Company and the Trustee
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and aggregate
principal amount and bearing a number not contemporaneously
outstanding.
(b) If
there
shall be delivered to the Trustee (i) evidence to its satisfaction of the
destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by it to save each of the Company and the Trustee harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona
fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and aggregate principal amount as such
destroyed, lost or stolen Security, and bearing a number not contemporaneously
outstanding.
27
(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 expense, tax
or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every
new
Security issued pursuant to this Section
3.6
in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued
hereunder.
(f) The
provisions of this Section
3.6
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION
3.7. Persons
Deemed Owners.
The
Company, the Trustee and any agent of the Company or the Trustee shall treat
the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any interest on such
Security and for all other purposes whatsoever, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION
3.8. Cancellation.
All
Securities surrendered for payment, redemption, transfer or exchange shall,
if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Securities surrendered directly to the Trustee
for
any such purpose shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any
Securities canceled as provided in this Section
3.8,
except
as expressly permitted by this Indenture. All canceled Securities shall be
retained or disposed of by the Trustee in accordance with its customary
practices and if requested, the Trustee shall deliver to the Company a
certificate of such disposition.
28
SECTION
3.9. Withholding
Tax.
The
Company and the Paying Agent are authorized to withhold pursuant to all
withholding and backup withholding tax requirements under United States federal,
state and local law. The Company and its Paying Agent shall request, and the
Holders shall provide to the Company and Paying Agent, such forms or
certificates as are necessary to establish an exemption from withholding and
backup withholding tax with respect to each Holder and any representations
and
forms as shall reasonably be requested by the Company and its Paying Agent
to
assist it in determining the extent of, and in fulfilling, its withholding
and
backup withholding tax obligations. The Company shall file required forms with
applicable jurisdictions and, unless an exemption from withholding and backup
withholding tax is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Company or any Paying Agent is required to withhold and pay over any
amounts to any jurisdiction with respect to payment of interest, premium, if
any, or principal or other amounts in respect of such Security or allocations
to
any Holder, the amount withheld shall be deemed to be a payment of interest,
premium, if any, or principal or other amounts in respect of such Security
in
the amount of the withholding to the Holder. In the event of any claimed
overwithholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
payments of interest, premium, if any, or principal or other amounts in respect
of such Security made, the Company or any Paying Agent may reduce subsequent
payments of interest, premium, if any, or principal or other amounts in respect
of such Security by the amount of such required withholding.
SECTION
3.10. Reserved.
SECTION
3.11. Agreed
Tax Treatment.
Each
Security issued hereunder shall provide that the Company and, by its acceptance
or acquisition of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a direct or indirect beneficial interest in, such
Security, intend and agree to treat such Security as indebtedness of the Company
for United States Federal, state and local tax purposes. 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.
29
ARTICLE
IV
Satisfaction
and Discharge
SECTION
4.1. Satisfaction
and Discharge of Indenture.
This
Indenture shall, upon Company Request, cease to be of further effect (except
as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for and as otherwise provided in this Section
4.1)
and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either
(i) all
Securities theretofore authenticated and delivered (other than (A) Securities
that have been mutilated, destroyed, lost or stolen and that have been replaced
or paid as provided in Section
3.6
and (B)
Securities for whose payment money has theretofore been deposited in trust
or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust as provided in Section
10.2)
have
been delivered to the Trustee for cancellation; or
(ii) all
such
Securities not theretofore delivered to the Trustee for
cancellation
(A) have
become due and payable, or
(B) will
become due and payable at their Stated Maturity within one year of the date
of
deposit, or
(C) are
to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name,
and
at the expense, of the Company,
and
the
Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited
or
caused to be deposited with the Trustee as trust funds in trust for such purpose
(x) an amount in the currency or currencies in which the Securities are payable,
(y) Government Obligations which through the scheduled payment of principal
and
interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount or (z) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest (including any Additional Interest)
to
the date of such deposit (in the case of Securities that have become due and
payable) or to the Stated Maturity (or any date of principal repayment upon
early maturity) or Redemption Date, as the case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
30
(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 protections to the Trustee
under Article
VI,
the
obligations of the Company to the Trustee under Section
6.6,
the
obligations of the Company to any Authenticating Agent under Section
6.11
and, if
money shall have been deposited with the Trustee pursuant to subclause (a)(ii)
of this Section
4.1,
the
obligations of the Trustee under Section
4.2
and
Section
10.2(d)
shall
survive.
SECTION
4.2. Application
of Trust Money.
Subject
to the provisions of Section
10.2(d),
all
money deposited with the Trustee pursuant to Section
4.1
shall be
held in trust and applied by the Trustee, in accordance with the provisions
of
the Securities and this Indenture, to the payment in accordance with
Section
3.1,
either
directly or through any Paying Agent as the Trustee may determine, to the
Persons entitled thereto, of the principal and any premium and interest
(including any Additional Interest) for the payment of which such money or
obligations have been deposited with or received by the Trustee. Moneys held
by
the Trustee under this Section
4.2
shall
not be subject to the claims of holders of Senior Debt under Article
XII.
ARTICLE
V
Remedies
SECTION
5.1. Events
of Default.
“Event
of Default”
means,
wherever used herein with respect to the Securities, any one of the following
events (whatever the reason for such Event of Default and whether it shall
be
voluntary or involuntary or be effected by operation of law or pursuant to
any
judgment, decree or order of any court or any order, rule or regulation of
any
administrative or governmental body):
(a) default
in the payment of any interest upon any Security, including any Additional
Interest, if any, in respect thereof, when it becomes due and payable, and
continuance of such default for a period of thirty (30) days; or
(b) default
in the payment in full 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, including, but not limited to (i)
the
treatment of the Securities as indebtedness for United States Federal income
tax
purposes under Sections
3.11
and
10.8
hereof
and (ii) the limitations on mergers, consolidations and transfers, conveyances
and/or leases of substantially all assets under Article
VIII
hereof,
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;
31
(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; or
(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.
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).
(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, 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,
32
(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 and its 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;
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
SECTION
5.3. Repurchase
at the Option of Holders upon Change of Control.
(a) Upon
the
occurrence of a Change of Control (as hereinafter defined), which Change of
Control results in a downgrade of the Company’s corporate credit rating (which,
for the avoidance of doubt, shall not include the ratings on any securitized
debt issued by the Company or the affiliates of the Company) by two (2) of
(i)
Standard & Poor's (S&P), a division of the ▇▇▇▇▇▇-▇▇▇▇ companies, (ii)
▇▇▇▇▇’▇ Corporation and (iii) Fitch Ratings, Ltd., then each Holder shall have,
exercisable only within thirty (30) days from the date of receipt of notice
of
the Change of Control occurs, the right to require that the Company purchase
all
or a portion (in integral multiples of $1,000) of such Holder’s Outstanding
Securities at the discretion of the Holder using immediately available funds
pursuant to the offer described below (the “Change
of Control Offer”),
at a
purchase price in cash equal to 100% of the principal amount thereof Outstanding
on the date of purchase, plus accrued and unpaid interest and Additional
Interest, if any, to the date of purchase.
(b) For
purposes of this Section
11.8,
“Change
of Control”
means:
(i) any person (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), including a “group” as defined in Section 13(d)(3) of the Exchange Act
(but excluding a director or other fiduciary holding securities under an
employee benefit plan of the Company), becomes the beneficial owner of Equity
Interests of the Company having at least fifty percent (50%) of the total number
of votes that may be case for the election of directors of the Company; or
(ii)
the merger or other business combination of the Company, sale of all or
substantially all of the Company’s assets or any combination of the foregoing
transactions (each a “Change
of Control Transaction”
and,
collectively, the “Change
of Control Transactions”),
except for a Change of Control Transaction immediately following which the
shareholders of the Company immediately prior to the Change of Control
Transaction continue to have a majority of the voting power in the entity
succeeding to the Company (excluding, for this purposes, any shareholder owning,
directly or indirectly, more than ten percent (10%) of the shares of any other
company involved in the Change of Control Transaction).
(c) Within
thirty (30) days following the date upon which the Change of Control occurred,
the Company must send, by registered first-class mail, an offer to each Holder,
with a copy to the Trustee, which offer shall govern the terms of the Change
of
Control Offer. The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. Such notice shall state:
33
(i) that
the
Change of Control Offer is being made pursuant to this Section
5.3
and
that, to the extent lawful, all Securities validly tendered and not withdrawn
shall be accepted for payment. The Change of Control Offer shall provide for
a
right to purchase thirty (30) to sixty (60) days subsequent to receipt of
notice;
(ii) the
purchase date (including the amount of accrued interest and Additional Interest,
if any), which must be no earlier than thirty (30) days nor later than sixty
(60) days from the date such notice is mailed, other than as may be required
by
law (the “Change
of Control Payment Date”);
(iii) that
any
Security not tendered shall continue to accrue interest and Additional Interest,
if applicable/shall be accelerated;
(iv) that,
unless the Company defaults in making payment therefor, any Security accepted
for payment pursuant to the Change of Control Offer shall cease to accrue
interest and Additional Interest, if applicable, after the Change of Control
Payment Date;
(v) that
Holders electing to have a Security purchased pursuant to a Change of Control
Offer will be required to surrender the Security, with the form entitled “Option
of Holder to Elect Purchase” on the reverse of the Security completed, to the
paying agent at the address specified in the notice prior to the close of
business on the third (3rd)
business day prior to the Change of Control Payment Date;
(vi) that
Holders shall be entitled to withdraw their election if the Paying Agent
receives, not later than five (5) Business Days prior to the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Securities the Holder
delivered for purchase and a statement that such Holder is withdrawing its
election to have such Securities purchased;
(vii) that
Holders whose Securities are purchased only in part shall be issued new
Securities in a principal amount equal to the unpurchased portion of the
Securities surrendered; provided
that
each Security purchased and each new security issued shall be in an original
principal amount of $100,000 or integral multiples of $1,000 in excess thereof,
and such new Securities will be issued in the name of the Holder thereof upon
cancellation of the original Security (or appropriate adjustments to the amount
and beneficial interests in a Global Security will be made); and
(viii) the
circumstances and relevant facts regarding such Change of Control.
(d) If
any of
the Securities subject to the Change of Control Offer is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary
to
comply with the procedures of the Depositary applicable to
repurchases.
34
(e) On
or
before the Change of Control Payment Date, the Company shall, to the extent
lawful (i) accept for payment Securities or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent an amount of money sufficient to pay the purchase price plus
accrued interest and Additional Interest, if any, of all Securities or portions
thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers’ Certificate
stating the aggregate principal amount of Securities or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to the Holders
so
tendered the purchase price for such Securities and the Company shall promptly
issue and the Trustee shall promptly (but in any case not later than five (5)
days after the Change of Control Payment Date) authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Security equal in
principal amount to any unpurchased portion of the Securities surrendered;
provided
that
each such new Security shall be in a principal amount of $100,000 or an integral
multiple of $1,000 in excess thereof. Any Securities not so accepted shall
be
promptly mailed by the Company to the Holders thereof. For purposes of this
Section
5.3,
the
Trustee shall act as the Paying Agent.
(f) Any
amounts remaining after the purchase of Securities pursuant to a Change of
Control Offer shall be returned by the Trustee to the Company.
(g) Neither
the Board of Directors of the Company nor the Trustee may waive the Company’s
obligation to offer to purchase the Securities pursuant to this Section
5.3.
(h) The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
and regulations are applicable in connection with the repurchase of Securities
pursuant to a Change of Control Offer. To the extent that the provisions of
any
securities laws or regulations conflict with the provisions of this Section
5.3,
the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the provisions of
this Section
5.3
by
virtue thereof.
(i) The
Company will not be required to make a Change of Control Offer upon a Change
of
Control if a third party makes the Change of Control Offer in the manner, at
the
times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not properly withdrawn under
such
Change of Control Offer.
SECTION
5.4. 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,
35
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 any 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 such Securities by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or
to
enforce any other proper remedy.
SECTION
5.5. Trustee
May File Proofs of Claim.
In
case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative
to
the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such
proceeding or otherwise, to take any and all actions authorized hereunder in
order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to first pay to the Trustee any amount due
it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under Section
6.6.
SECTION
5.6. 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.
36
SECTION
5.7. Application
of Money Collected.
Any
money
or property collected or to be applied by the Trustee with respect to the
Securities pursuant to this Article
V
shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money or property on account of principal
or
any premium or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially
paid
and upon surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under Section
6.6;
SECOND:
To the payment of all Senior Debt of the Company if and to the extent required
by Article
XII;
THIRD:
Subject to Article
XII,
to the
payment of the amounts then due and unpaid upon the Securities for principal
and
any premium and interest (including any Additional Interest) in respect of
which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on
the Securities for principal and any premium and interest (including any
Additional Interest), respectively; and
FOURTH:
The balance, if any, to the Person or Persons entitled thereto.
SECTION
5.8. Limitation
on Suits.
Subject
to Section
5.9,
no
Holder of any Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment
of
a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities;
(b) the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d) the
Trustee after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding for sixty (60) days; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities;
37
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
5.9. Unconditional
Right of Holders to Receive Principal, Premium, if any, and
Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium 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.
SECTION
5.10. Restoration
of Rights and Remedies.
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee,
such
Holder, then and in every such case the Company, the Trustee, such Holders
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 shall continue as though no such
proceeding had been instituted.
SECTION
5.11. Rights
and Remedies Cumulative.
Except
as
otherwise provided in Section
3.6(f),
no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to
every other right and remedy given hereunder or now or hereafter existing at
law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION
5.12. Delay
or Omission Not Waiver.
No
delay
or omission of the Trustee or any Holder of any Securities to exercise any
right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article
V
or by
law to the Trustee or to the Holders may be exercised from time to time, and
as
often as may be deemed expedient, by the Trustee or the Holders, as the case
may
be.
SECTION
5.13. Control
by Holders.
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding 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:
38
(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
5.14. Waiver
of Past Defaults.
(a) The
Holders of not less than a majority in aggregate principal amount of the
Outstanding 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.
(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
5.15. 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
5.15
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.
39
SECTION
5.16. Waiver
of Usury, Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
ARTICLE
VI
The
Trustee
SECTION
6.1. Corporate
Trustee Required.
There
shall at all times be a Trustee hereunder with respect to the Securities. The
Trustee shall be a corporation or national banking association organized and
doing business under the laws of the United States or of any state thereof,
authorized to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or state authority and having an office within the United States. If
such entity publishes reports of condition at least annually, pursuant to law
or
to the requirements of such supervising or examining authority, then, for the
purposes of this Section
6.1,
the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section
6.1,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article
VI.
SECTION
6.2. Certain
Duties and Responsibilities.
Except
during the continuance of an Event of Default:
(i) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; provided,
that in
the case of any such certificates or opinions that by any provision hereof
are
specifically required to be furnished to the Trustee, the Trustee shall be
under
a duty to examine the same to determine whether or not they substantially
conform on their face to the requirements of this Indenture.
40
(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,
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 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 to replace such other duties and liabilities of
the
Trustee.
(d) No
provisions of this Indenture shall be construed to relieve the Trustee from
liability with respect to matters that are within the authority of the Trustee
under this Indenture for its own negligent action, negligent failure to act
or
willful misconduct, except that:
(i) the
Trustee shall not be liable for any error or judgment made in good faith by
an
authorized officer of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(ii) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders of
at
least a majority in aggregate principal amount of the Outstanding Securities;
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.
SECTION
6.3. Notice
of Defaults.
Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless such
default shall have been cured or waived; provided,
that
except in the case of a default in the payment of the principal of or any
premium or interest on any Securities, the Trustee shall be fully protected
in
withholding the notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of
the
Trustee in good faith determines that withholding the notice is in the interest
of Holders of Securities; and provided,
further,
that in
the case of any default of the character specified in Section
5.1(c),
no such
notice to Holders shall be given until at least thirty (30) days after the
occurrence thereof. For the purpose of this Section
6.3,
the
term “default” means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
41
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
(10)
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
s pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction,
including reasonable advances as may be requested by the Trustee;
42
(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.
43
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 pursuant to a separate fee agreement (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.
44
(d) In
no
event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, even if the Trustee has been advised of the likelihood of
such
loss or damage and regardless of the form of action.
(e) In
no
event shall the Trustee be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
SECTION
6.7. Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article
VI
shall
become effective until the acceptance of appointment by the successor Trustee
under Section
6.8.
(b) The
Trustee may resign at any time by giving 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.
45
SECTION
6.8. Acceptance
of Appointment by Successor.
(a) In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a)
of
this Section
6.8.
(c) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article
VI.
SECTION
6.9. Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Trustee may be merged or converted or with which it may
be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto,
provided,
that
such Person shall be otherwise qualified and eligible under this Article
VI.
In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation or as
otherwise provided above in this Section
6.9
to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated, and in case any Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name
of any predecessor Trustee or in the name of such successor Trustee, and in
all
cases the certificate of authentication shall have the full force which it
is
provided anywhere in the Securities or in this Indenture that the certificate
of
the Trustee shall have.
SECTION
6.10. Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s execution
of 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.
46
SECTION
6.11. Appointment
of Authenticating Agent.
(a) The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section
3.6,
and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, or of any State or Territory thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually pursuant to law or to
the
requirements of said supervising or examining authority, then for the purposes
of this Section
6.11
the
combined capital and surplus of such Authenticating Agent shall be deemed to
be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease
to be
eligible in accordance with the provisions of this Section
6.11,
such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section
6.11.
(b) Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided
such
Person shall be otherwise eligible under this Section
6.11,
without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
(c) An
Authenticating Agent may resign at any time by giving written notice thereof
to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section
6.11,
the
Trustee may appoint a successor Authenticating Agent eligible under the
provisions of this Section
6.11,
which
shall be acceptable to the Company, and shall give notice of such appointment
to
all Holders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
47
(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, as an alternative 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:
|
Wilmington
Trust Company,
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.
48
(b) The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights
and
privileges of the Trustee, shall be as provided in the Trust Indenture
Act.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information
as
to the names and addresses of the Holders made pursuant to the Trust Indenture
Act.
SECTION
7.3. Reports
by Company.
(a) The
Company shall furnish to the Holders and to prospective purchasers of
Securities, upon their request, the information required to be furnished
pursuant to Rule 144A(d)(4) under the Securities Act. The delivery requirement
set forth in the preceding sentence may be satisfied by compliance with
Section
7.3(b)
hereof.
(b) The
Company shall furnish to each of (i) the Trustee, (ii) the Holders and to
subsequent holders of Securities, (iii) Coredo Capital Management, LLC, ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇ ▇▇▇▇▇ (or such other address as
designated by Coredo 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 Coredo 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 Company and not later than ninety (90) days after the
end of each fiscal year of the Company.
(c) If
the
Company intends to file its annual and quarterly information with the Securities
and Exchange Commission (the “Commission”)
in
electronic form pursuant to Regulation S-T of the Commission using the
Commission’s Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”)
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 ▇▇▇▇▇ 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 Company makes with the Commission, regardless of whether such
filings are periodic, supplemental or otherwise. Delivery of reports,
information and documents to the Trustee pursuant to this Section
7.3(c)
shall be
solely for purposes of compliance with this Section
7.3(c)
and, if
applicable, with Section 314(a) of the Trust Indenture Act. The Trustee’s
receipt of such reports, information and documents shall not constitute notice
to it of the content thereof or any matter determinable from the content
thereof, including the Company’s compliance with any of its covenants hereunder,
as to which the Trustee is entitled to rely upon Officers’
Certificates.
49
ARTICLE
VIII
Consolidation,
Merger, Conveyance, Transfer or Lease
SECTION
8.1. Company
May Consolidate, Etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to
any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a) if
the
Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
the entity formed by such consolidation or into which the Company is merged
or
the Person that acquires by conveyance or transfer, or that leases, the
properties and assets of the Company substantially as an entirety shall be
an
entity organized and existing under the laws of the United States of America
or
any State or Territory thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including any
Additional Interest) on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event
that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee an 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.
50
(b) Such
successor Person may cause to be executed, and may issue either in its own
name
or in the name of the Company, any or all of the Securities issuable hereunder
that theretofore shall not have been signed by the Company and delivered to
the
Trustee; and, upon the order of such successor Person instead of the Company
and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its
behalf. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture.
(c) In
case
of any such consolidation, merger, sale, conveyance or lease, such changes
in
phraseology and form may be made in the Securities thereafter to be issued
as
may be appropriate to reflect such occurrence.
ARTICLE
IX
Supplemental
Indentures
SECTION
9.1. Supplemental
Indentures without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to
evidence the succession of another Person to the Company, and the assumption
by
any such successor of the covenants of the Company herein and in the Securities;
or
(b) to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee; or
(c) to
cure
any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the other provisions of this
Indenture; 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; or
51
(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.
SECTION
9.2. Supplemental
Indentures with Consent of Holders.
(a) Subject
to Section 9.1,
with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities under this Indenture; provided,
that
no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security,
(i) change
the Stated Maturity of the principal or any premium of any Security or change
the date of payment of any installment of interest (including any Additional
Interest) on any Security, or reduce the principal amount thereof or the rate
of
interest thereon or any premium payable upon the redemption thereof or change
the place of payment where, or the coin or currency in which, any Security
or
interest thereon is payable, or restrict or impair the right to institute suit
for the enforcement of any such payment on or after such date, or
(ii) reduce
the percentage in aggregate principal amount of the Outstanding Securities,
the
consent of whose Holders is required for any such supplemental indenture, or
the
consent of whose Holders is required for any waiver of compliance with any
provision of this Indenture or of defaults hereunder and their consequences
provided for in this Indenture, or
(iii) modify
any of the provisions of this Section
9.2,
Section
5.1,
Section
5.14
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.
(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 expense of the Company to each Holder, promptly after the
execution thereof.
52
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 each such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of 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.
53
(c) The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(d) Any
money
deposited with the Trustee or any Paying Agent for the payment of the principal
of and any premium or interest (including any Additional Interest) on any
Security and remaining unclaimed for two (2) years after such principal and
any
premium or interest has become due and payable shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Company Request to the Company, or (if then held by the Company)
shall (unless otherwise required by mandatory provision of applicable escheat
or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION
10.3. Statement
as to Compliance.
The
Company shall deliver to the Trustee, within ninety (90) days after the end
of
each fiscal year of the Company ending after the date hereof, an Officers’
Certificate covering the preceding calendar year, stating whether or not to
the
knowledge of the signers thereof the Company is in default in the performance
or
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
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 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. If the Calculation Agent is unable or
unwilling to act as such or is removed by the Company, the Company will promptly
appoint as a replacement Calculation Agent the London office of a leading bank
which is engaged in transactions in Eurodollar deposits in the international
Eurodollar market and which does not control or is not controlled by or under
common control with the Company or its Affiliates. The Calculation Agent may
not
resign its duties without a successor having been duly appointed.
54
(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 and Interest Payment amount (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. Reserved.
SECTION
10.6. Additional
Covenants.
(a) The
Company covenants and agrees with each Holder of Securities that if an Event
of
Default shall have occurred and be continuing, it shall not (i) declare or
pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s Equity Interests,
except only to the extent necessary to maintain its status as a real estate
investment trust under the Code, (ii) vote in favor of or permit or otherwise
allow any of its Significant 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 Significant
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) if such
proceeds are payable to any third party which is not the Company or an affiliate
of the Company, 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 (other than with respect
to clauses (i) and (iii) above, (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company or any Significant
Subsidiary in connection with (1) any employment contract, benefit plan or
other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase plan or (3) the issuance of capital stock of the Company or
of
such Significant Subsidiary (or securities convertible into or exercisable
for
such capital stock) as consideration in an acquisition transaction entered
into
prior to the Event of Default, (b) as a result of an exchange or conversion
of
any class or series of the Company’s capital stock (or any capital stock of a
Significant Subsidiary) for any class or series of the Company’s capital stock
(or in the case of a Significant Subsidiary, any class or series of such
Significant Subsidiary’s capital stock) or any class or series of the Company’s
indebtedness for any class or series of the Company’s capital stock (or in the
case of indebtedness of a Significant Subsidiary, or any class or series of
such
Significant Subsidiary’s indebtedness for any class or series of such
Significant Subsidiary’s capital stock), (c) the purchase of fractional
interests in shares of the Company’s capital stock (or the capital stock of a
Significant Subsidiary) pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, the issuance
of
rights, stock or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto or (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari
passu
with or
junior to such stock and any cash payments in lieu of fractional shares issued
in connection therewith).
55
(b) The
Company also agrees to use its reasonable best efforts to meet the requirements
to qualify, effective for the fiscal year ending December 31, 2007 and all
future fiscal years, as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, so long as the Company determines that it
is
in its best interest to remain qualified as a real estate investment
trust.
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, 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, unless and until required otherwise by an applicable taxing
authority, treat the Securities as indebtedness, and the amounts, other than
payments of principal, payable in respect of the principal amount of such
Securities as interest, for all United States federal income tax purposes.
All
payments in respect of the Securities will be made free and clear of United
States withholding tax to any beneficial owner thereof that has provided an
Internal Revenue Service Form W-9 or W-8BEN (or any substitute or successor
form) establishing its U.S. or non-U.S. status for United States federal income
tax purposes, or any other applicable form establishing a complete exemption
from United States withholding tax.
56
SECTION
10.9. Limitation
of Issuance of Securities.
The
Company covenants and agrees with each Holder of Securities that the Company
will not, until the date that is six months following the date of this
Indenture, offer, sell, contract to sell, grant any option to purchase or
otherwise dispose of, directly or indirectly, (i) any Securities or other
unsecured debt securities substantially similar to the Securities (“Substantially
Similar Securities”),
or
(ii) any securities convertible into, or exercisable or exchangeable for, the
Securities any Substantially Similar Securities, with the exception of the
issuance of $25.0 million subordinated notes which will be issued no later
than
June 1, 2007 (“Subsequent
Subordinated Notes”).
The
Subsequent Subordinated Notes will be issued pari
passu with
the
Securities issued under this Indenture and under terms materially consistent
with the terms set forth herein.
ARTICLE
XI
Redemption
and Put of Securities
SECTION
11.1. Optional
Redemption.
The
Company may, at its option, on any Interest Payment Date, on or after July
30,
2012, redeem the Securities in whole at any time or in part from time to time,
at a Redemption Price equal to one hundred percent (100%) of the principal
amount thereof (or of the redeemed portion thereof, as applicable), together,
in
the case of any such redemption, with accrued and unpaid interest, including
any
Additional Interest, through but excluding the date fixed as the Redemption
Date
(the “Optional
Redemption Price”).
SECTION
11.2. Special
Event Redemption.
Prior
to
July 30, 2012, upon the occurrence and during the continuation of a Special
Event, the Company may, at its option, redeem the Securities, in whole but
not
in part, at a Redemption Price equal to:
|
TIME
PERIOD
|
PERCENTAGE
|
|
May
23, 2007 - July 29, 2008
|
107.5%
|
|
July
30, 2008 - July 29, 2009
|
105%
|
|
July
30, 2009 - July 29, 2010
|
103.75%
|
|
July
30, 2010 - July 29, 2011
|
102.5%
|
|
July
30, 2011 - July 29, 2012
|
101.25%
|
|
July
30, 2012 and thereafter
|
100%
|
57
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 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 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.
58
(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.
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.
59
(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; provided, that the Securities shall be senior in right of payment
to any junior subordinated debt securities issued by the Company,
including, but not limited to, the debt securities issued by Redwood Capital
Trust I and by any other financing entity (as defined herein).
SECTION
12.2. No
Payment When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution,
Etc.
(a) In
the
event and during the continuation of any default by the Company in the payment
of any principal of or any premium or interest on any Senior Debt (following
any
grace period, if applicable) when the same becomes due and payable, whether
at
maturity or at a date fixed for prepayment or by declaration of acceleration
or
otherwise, then, upon written notice of such default to the Company by the
holders of such Senior Debt or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set-off or otherwise)
shall be made or agreed to be made on account of the principal of or any premium
or interest (including any Additional Interest) on any of the Securities, or
in
respect of any redemption, repayment, retirement, purchase or other acquisition
of any of the Securities.
(b) In
the
event of a bankruptcy, insolvency or other proceeding described in clause (d)
or
(e) of the definition of Event of Default (each such event, if any, herein
sometimes referred to as a “Proceeding”),
all
Senior Debt (including any interest thereon accruing after the commencement
of
any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made
to
any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under
any
such plan of reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of Senior Debt
in
accordance with the priorities then existing among such holders until all Senior
Debt (including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid in full.
60
(c) In
the
event of any Proceeding, after payment in full of all sums owing with respect
to
Senior Debt, the Holders of the Securities, together with the holders of any
obligations of the Company ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at
the
time due and owing on account of unpaid principal of and any premium and
interest (including any Additional Interest) on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any Equity Interests or any
obligations of the Company ranking junior to the Securities and such other
obligations. If, notwithstanding the foregoing, any payment or distribution
of
any character on any security, whether in cash, securities or other property
(other than securities of the Company or any other entity provided for by a
plan
of reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt
at
the time outstanding and to any securities issued in respect thereof under
any
such plan of reorganization or readjustment) shall be received by the Trustee
or
any Holder in contravention of any of the terms hereof and before all Senior
Debt shall have been paid in full, such payment or distribution or security
shall be received in trust for the benefit of, and shall be paid over or
delivered and transferred to, the holders of the Senior Debt at the time
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all such Senior Debt (including any interest thereon
accruing after the commencement of any Proceeding) in full. In the event of
the
failure of the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Debt is hereby irrevocably
authorized to endorse or assign the same.
(d) The
Trustee and the Holders, at the expense of the Company, shall take such
reasonable action (including the delivery of this Indenture to an agent for
any
holders of Senior Debt or consent to the filing of a financing statement with
respect hereto) as may, in the opinion of counsel designated by the holders
of a
majority in principal amount of the Senior Debt at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
(e) The
provisions of this Section
12.2
shall
not impair any rights, interests, remedies or powers of any secured creditor
of
the Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
61
(f) The
securing of any obligations of the Company, otherwise ranking on a parity with
the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking
on
a parity with the Securities or ranking junior to the Securities.
SECTION
12.3. Payment
Permitted If No Default.
Nothing
contained in this Article
XII
or
elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Company, at any time, except during the pendency of the conditions described
in
paragraph (a) of Section
12.2
or of
any Proceeding referred to in Section
12.2,
from
making payments at any time of principal of and any premium or interest
(including any Additional Interest) on the Securities or (b) the application
by
the Trustee of any moneys deposited with it hereunder to the payment of or
on
account of the principal of and any premium or interest (including any
Additional Interest) on the Securities or the retention of such payment by
the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge (in accordance with Section
12.8)
that
such payment would have been prohibited by the provisions of this Article
XII,
except
as provided in Section
12.8.
SECTION
12.4. Subrogation
to Rights of Holders of Senior Debt.
Subject
to the payment in full of all amounts due or to become due on all Senior Debt,
or the provision for such payment in cash or cash equivalents or otherwise
in a
manner satisfactory to the holders of Senior Debt, the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to
the
holders of such Senior Debt pursuant to the provisions of this Article
XII
(equally
and ratably with the holders of all indebtedness of the Company that by its
express terms is subordinated to Senior Debt of the Company to substantially
the
same extent as the Securities are subordinated to the Senior Debt and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property
and
securities applicable to the Senior Debt until the principal of and any premium
and interest (including any Additional Interest) on the Securities shall be
paid
in full. For purposes of such subrogation, no payments or distributions to
the
holders of the Senior Debt of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article
XII,
and no
payments made pursuant to the provisions of this Article
XII
to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall,
as
among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION
12.5. Provisions
Solely to Define Relative Rights.
The
provisions of this Article
XII
are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Senior Debt on
the
other hand. Nothing contained in this Article
XII
or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to
the
Holders of the Securities the principal of and any premium and interest
(including any Additional Interest) on the Securities as and when the same
shall
become due and payable in accordance with their terms, (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of
the
Company other than their rights in relation to the holders of Senior Debt or
(c)
prevent the Trustee or the Holder of any Security 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.
62
SECTION
12.6. Trustee
to Effectuate Subordination.
Each
Holder of a Security by his or her acceptance thereof authorizes and directs
the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article
XII
and
appoints the Trustee his or her attorney-in-fact for any and all such
purposes.
SECTION
12.7. No
Waiver of Subordination Provisions.
(a) No
right
of any present or future holder of any Senior Debt to enforce subordination
as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged
with.
(b) Without
in any way limiting the generality of paragraph (a) of this Section
12.7,
the
holders of Senior Debt may, at any time and from to time, without the consent
of
or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to such Holders of the Securities and without impairing or
releasing the subordination provided in this Article
XII
or the
obligations hereunder of such Holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or
terms
of payment or extend the time of payment of, or renew or alter, Senior Debt,
or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding,
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt, (iii) release any Person liable
in
any manner for the payment of Senior Debt and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION
12.8. Notice
to Trustee.
(a) The
Company shall give prompt written notice to a Responsible Officer of the Trustee
of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. 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 (2) 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 (2) Business Days prior to such date.
63
(b) The
Trustee shall be entitled to rely on the delivery to it of a written notice
by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee, agent, representative or attorney-in-fact therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to
the
right of any Person as a holder of Senior Debt to participate in any payment
or
distribution pursuant to this Article
XII,
the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment
or
distribution and any other facts pertinent to the rights of such Person under
this Article
XII,
and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION
12.9. Reliance
on Judicial Order or Certificate of Liquidating Agent.
Upon
any
payment or distribution of assets of the Company referred to in this
Article
XII,
the
Trustee and the Holders of the Securities shall be entitled to conclusively
rely
upon any order or decree entered by any court of competent jurisdiction in
which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders
of
the Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to this Article
XII.
SECTION
12.10. Trustee
Not Fiduciary for Holders of Senior Debt.
The
Trustee, in its capacity as trustee under this Indenture, shall not be deemed
to
owe any fiduciary duty to the holders of Senior Debt and shall not be liable
to
any such holders if it shall in good faith mistakenly pay over or distribute
to
Holders of Securities or to the Company or to any other Person cash, property
or
securities to which any holders of Senior Debt shall be entitled by virtue
of
this Article
XII
or
otherwise.
SECTION
12.11. Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article
XII
with
respect to any Senior Debt that may at any time be held by it, to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
64
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.
Redwood
Trust, Inc.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title:
Vice
President, Chief Financial
and
Secretary
66
Wilmington
Trust Company,
as
Trustee
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Financial Services Officer
67
Schedule
A
DETERMINATION
OF LIBOR
With
respect to the Securities, the London interbank offered rate (“LIBOR”)
shall
be determined by the Calculation Agent in accordance with the following
provisions (in each case rounded to the nearest .000001%):
(1) On
the
second LIBOR Business Day (as defined below) prior to an Interest Payment Date
(except with respect to the first interest payment period such date shall be
May
23, 2007) (each
such day, a “LIBOR
Determination Date”),
LIBOR
for any given security shall for the following interest payment period equal
the
rate (expressed as a percentage per annum) for U.S. dollar deposits in Europe,
for a three (3) month period, that appears on Reuters Screen LIBOR01, or such
other page as may replace such Reuters Screen LIBOR01, as of 11:00 a.m. (London
time) on such LIBOR Determination Date, as reported by Bloomberg Financial
Market Commodities News or any successor service. If such rate is superseded
on
Reuters Screen LIBOR01 by a corrected rate before 12:00 noon (London time)
on
such LIBOR Determination Date, the corrected rate as so substituted will be
LIBOR for such LIBOR Determination Date.
(2) If
on any
LIBOR Determination Date such rate does not appear on Reuters Screen LIBOR01
or
such other page as may replace such Reuters Screen LIBOR01, the Calculation
Agent shall determine the arithmetic mean of the offered quotations (expressed
as a percentage per annum) of the Reference Banks (as defined below) to leading
banks in the London interbank market for U.S. dollar deposits in Europe, for
a
three (3) month period, for an amount determined by the Calculation Agent (but
not less than U.S. $1,000,000) by reference to requests for quotations as of
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 (expressed as a
percentage per annum) that two (2) leading banks in The City of New York
selected by the Calculation Agent are quoting on the relevant LIBOR
Determination Date for U.S. dollar deposits in Europe, for a three (3) month
period, for an amount determined by the Calculation Agent (but not less than
U.S. $1,000,000); provided,
that if
the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR shall
be
LIBOR as determined on the previous LIBOR Determination Date.
(3) As
used
herein: “Reference
Banks”
means
four major banks in the London interbank market selected by the Calculation
Agent; and “LIBOR
Business Day”
means
a
day (a) on which commercial banks are open for business (including dealings
in
foreign exchange and foreign currency deposits) in London and (b) is not a
Saturday, Sunday or other day on which commercial banking institutions in New
York, New York or Wilmington, Delaware are authorized or obligated by law or
executive order to be closed.
Schedule
A-1
Schedule
A
Form
of Officer’s Financial Certificate
The
undersigned, the [Chairman/Vice
Chairman/Chief Executive Officer/President/Vice President/Chief
Financial Officer/Treasurer/Assistant Treasurer], hereby certifies, pursuant
to
Section 7.3(b) of the Subordinated Indenture, dated as of May 23, 2007, among
Redwood Trust, Inc. (the “Company”) and Wilmington Trust Company, as trustee,
that, as of [date], [20__], the Company, if applicable, and its subsidiaries
had
the following ratios and balances:
As
of
[Quarterly/Annual Financial Date], 20__
|
Senior
secured indebtedness for borrowed money (“Debt”)
|
$_____
|
|
Senior
unsecured Debt
|
$_____
|
|
Subordinated
Debt
|
$_____
|
|
Total
Debt
|
$
_____
|
|
Ratio
of (x) senior secured and unsecured Debt to (y) total Debt
|
_____%
|
*
A table
describing the quarterly report calculation procedures is provided on page
___
[FOR
FISCAL YEAR END: Attached
hereto are the audited consolidated financial statements (including the balance
sheet, income statement and statement of cash flows, and notes thereto, together
with the report of the independent accountants thereon) of the Company and
its
consolidated subsidiaries for the three years ended [date], 20__ and all
required Financial Statements (as defined in the Purchase Agreement) for the
year ended [date], 20__]
[FOR
FISCAL QUARTER END: Attached
hereto are the unaudited consolidated and consolidating financial statements
(including the balance sheet and income statement) of the Company and its
consolidated subsidiaries and all required Financial Statements (as defined
in
the Purchase Agreement) for the year ended [date], 20__] for the fiscal quarter
ended [date], 20__.]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the date, and for the [quarterly]
[annual]
period
ended [date], 20__, and such financial statements have been prepared in
accordance with GAAP consistently applied throughout the period involved (except
as otherwise noted therein).
There
has
been no monetary default with respect to any indebtedness owed by the Company
and/or its subsidiaries (other than those defaults cured within 30 days of
the
occurrence of the same).
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Financial
Certificate as of this _____ day of _____________, 20__.
Redwood
Trust, Inc.
By:
_______________________________
Name:
Title:
Redwood
Trust, Inc.
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