EXHIBIT 4.1
VESTIN GROUP, INC.
[COMPANY LOGO]
SUBORDINATED NOTE
NUMBER ______________________________ DATE ISSUED________________________
PRINCIPAL AMOUNT $___________________ TERM ______________________________
ANNUAL PERCENTAGE YIELD _____% MATURITY DATE _____________________
INTEREST COMPOUNDED DAILY
PAYABLE ________________
VESTIN GROUP, INC., a Delaware corporation herein called the Company, for value
received, hereby promises to pay to:
(the "Holder" or "Noteholder")
Interest payments shall be made by check delivered by mail to the address
of the Holder appearing on the Note register maintained by the Registrar (which
address may be changed from time to time by notice given by ▇▇▇▇▇▇ in writing to
the Registrar) on the Regular Record Date preceding the subject Payment Date;
principal and interest payment at the end of the term hereof shall also be made
by check delivered by mail to the address of the Holder appearing on the Note
register maintained by the Registrar, or in person to Holder at the offices or
agency of the Paying Agent, in exchange for this Note. Holder shall be notified
prior to such payment of the address at which such payment shall occur. The
Company is currently acting as Paying Agent and Registrar. The Company may
change the Registrar or Paying Agent without notice to the Noteholder.
All payments hereunder 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.
All interest on the Notes will be compounded daily and computed on the
basis of a year of 360 days.
This Note is being issued pursuant to an Indenture dated as of ,
2003 ("Indenture") between the Company and U.S. Bank National Association
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as Trustee and in connection with an offering by the Company of an aggregate of
$600,000,000 U.S. principal amount of unsecured, subordinated investment notes
("Notes") as described in the Company's Prospectus dated March 28, 2003, as
amended and supplemented from time to time, and a current interest rate
supplement thereto. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code ss.ss.77aaa-77bbbb) ("TIA"). The Notes are
subject to all such terms, and Holder is referred to the Indenture and such Act
for a statement of such terms. All capitalized terms not otherwise defined
herein shall have the meaning given to such terms in the Indenture.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, Vestin Group, Inc. has caused this Note to be signed
on the date first above written.
ISSUER:
VESTIN GROUP, INC.
(SEAL) BY: ____________________________________
Attest: ________________________________
Officer of Company
COUNTERSIGNED AND REGISTERED BY
________________________________________
________________________________________
BY: ------------------------------------
Authorized Signature
[REVERSE SIDE OF NOTE]
1. Subordination. The indebtedness evidenced by the Note shall be
postponed and subordinated and is subject in right of payment, to the extent and
in the manner set forth in the Indenture, to the prior payment in full of all
"Senior Debt" of the Company. "Senior Debt" means any indebtedness (whether
outstanding on the date of issuance of this Note or thereafter created) incurred
by the Company in connection with borrowings by the Company (including its
subsidiaries) whether such indebtedness is or is not specifically designated by
the Company as
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being "Senior Debt" in its defining instruments. The Company agrees, and ▇▇▇▇▇▇
by accepting this Note consents and agrees, to the subordination provided for in
the Indenture and authorizes the Trustee to give it effect.
2. Subrogation. As more fully set forth in the Indenture, subject to the
payment in full of all Senior Debt of the Company, Holder shall be subrogated to
the rights of the holders of Senior Debt of the Company to receive payments or
distributions of assets of the Company made on the Senior Debt of the Company
until the principal of and interest on this Note shall be paid in full, and for
purposes of such subrogation, no such payment or distributions to the holders of
Senior Debt of the Company of cash, property or securities, which otherwise
would be payable or distributable to Holder, shall be between the Company, its
creditors other than the holders of Senior Debt of the Company, and Holder, be
deemed to be a payment by the Company to or on account of this Note, it being
understood that the provisions of this paragraph are intended solely for the
purpose of defining the relative rights of Holder, on the one hand, and the
holders of Senior Debt of the Company, on the other hand.
3. Nonimpairment. Nothing contained in this Note is intended to or shall
impair, as between the Company, the Company's creditors other than the holders
of Senior Debt of the Company, and Holder, the obligation of the Company, which
is absolute and unconditional, to pay to Holder the principal of and interest on
this Note, as and when the same shall become due and payable in accordance with
its terms, and which, subject to the rights under Article 10 of the Indenture of
the holders of Senior Debt of the Company, is intended to rank equally with all
other general obligations of the Company. In addition, nothing contained in this
Note is intended to or shall affect the relative rights of Holder and creditors
of the Company other than the holders of Senior Debt of the Company, nor shall
anything herein or therein prevent the Holder of this Note from exercising all
remedies otherwise permitted by the Indenture and applicable law upon the
occurrence of an Event of Default, subject to the rights, if any, under Article
10 of the Indenture of the holders of Senior Debt of the Company in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy.
4. Redemption by the Company. The Company may not redeem, in whole or in
part, any Note prior to its stated maturity, except upon 90 days prior written
notice to the Holder thereof listed on the records maintained by the Company.
5. Right of Set-Off In Certain Circumstances. Subject to the conditions of
applicable law, if the holder of the Note is a borrower or guarantor on a loan
made by the Company's subsidiaries which becomes delinquent, the Company
reserves the right to set-off principal and interest payments due on the debt
securities against such delinquent loans. This right to set-off payments due on
the debt securities is subject to the Holder's agreement with the set-off terms
at the time the loan is originated or the guarantee is entered into.
6. Events of Default. An Event of Default is:
(a) Default in the payment of any interest upon this Note when it
becomes due and payable and continuance of such default for a period of 30 days
(whether or not prohibited by the subordination provisions of the Indenture); or
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(b) Default in the payment of principal of this Note when it becomes
due and payable at maturity (whether or not prohibited by the subordination
provisions of the Indenture) and continuance of such default for 30 days; or
(c) Failure by the Company to comply with any of its agreements upon
a liquidation, consolidation, merger or transfer of substantially all of the
Company's assets (after notice and provided such default is not cured within 60
days after receipt of notice); or
(d) Failure by the Company for 60 days after notice to comply with
any of its other agreements in the Indenture or this Note; or
(e) Certain events of bankruptcy or insolvency (with respect to the
Company).
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least a majority in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes become due and payable immediately without
further action or notice. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or powers.
The Trustee may withhold from Noteholders notice of any continuing default
(except a default in payment of principal or interest) if it determines that
withholding notice would have no material adverse effect on the Noteholders. The
Company must furnish an annual compliance certificate to the Trustee.
7. Transfer and Exchange. The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture. This Note may not be
assigned, transferred or otherwise alienated without the prior written consent
of the Company (which consent shall not be unreasonably withheld) and shall be
subject to the Company's right to demand and receive an opinion of ▇▇▇▇▇▇'s
legal counsel (which counsel shall be reasonably acceptable to the Company) that
the transfer does not violate any applicable securities laws. The Company may
also require a signature guarantee.
8. Optional Extension of Term. The Company will provide each Holder of a
Note which matures prior to , 2005, the option to renew the term of
the Note. The Company will provide written notification to such Holder of the
upcoming Maturity Date of the Note at approximately twenty (20) but not less
than fifteen (15) days prior to the Maturity Date. This renewal notice will
provide the Holder of an eligible Note with an option to renew the Note for an
identical or alternative term. The renewal notice will specify the new rate
applicable to the renewal term and will include a copy of the current supplement
to the prospectus, which lists all of the rates applicable to each term offered
at the Holder's Maturity Date in the event the Holder elects to select an
alternative term upon the maturity of the Note. The renewal notice will indicate
that the Holder should have previously received a copy of the updated
prospectus, if applicable, and where the Holder can get another copy of the
prospectus. To renew the Note, the Holder must return the renewal form included
in the renewal notice prior to the Note's maturity. Otherwise, the Company will
redeem the Note upon its maturity.
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9. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
10. Amendments and Waivers. Subject to certain exceptions, the Indenture
or the Notes may be amended or supplemented and any existing Default under, or
compliance with any provision of, the Indenture may be waived with the written
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding. Without the consent of any Holder, the Company and the Trustee
may amend or supplement the Indenture or the Notes to cure any ambiguity, defect
or inconsistency; to provide for assumption of the Company's obligations to
holders of the debt securities in the case of a merger or consolidation; to
provide for additional uncertificated Notes or certificated Notes (if
applicable); to make any change that would provide any additional rights or
benefits to the holders of the Notes or that does not adversely affect the legal
rights under the indenture of any such holder, including an increase in the
aggregate dollar amount of debt securities which may be outstanding under the
Indenture; to modify the Company's policy to permit redemptions of the Notes
upon the death or total permanent disability of any holder of the Notes (but
such modification shall not adversely affect any then outstanding security); to
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act; or to make any
other change that may be required, provided that such change does not have a
material adverse effect on the Noteholders.
11. Trustee Dealings with Company. So long as done in accordance with the
TIA, the Trustee, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
12. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
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13. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
VESTIN GROUP, INC.
▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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The following abbreviations, when used in the inscription on the face of
the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - tenants in common
TEN ENT - tenants by the entireties
JT TEN - joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian_________________
(Cust) (Minor)
under Uniform Gifts/Transfers to Minors
Act______________________________
(State)
Additional abbreviations may also be used though not in the above list.
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FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
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(NAME AND ADDRESS OF ASSIGNEE, INCLUDING ZIP CODE,
MUST BE TYPEWRITTEN)
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the within Note, and all rights thereunder, hereby irrevocably
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constitute and appoint
______________________________________________________________________ Attorney
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
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NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without alteration
or enlargement, or any change whatever.
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