Exhibit 4.1





Exhibit 4.1




JUNIOR SUBORDINATED INDENTURE




between




NEWCASTLE INVESTMENT CORP.




and




THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL

ASSOCIATION,

as Trustee




 






Dated as of April 30, 2009




 






 





 




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I Definitions and Other Provisions of General Application
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.1. Definitions
	 	 	1	 
	SECTION 1.2. Compliance Certificate and Opinions
	 	 	10	 
	SECTION 1.3. Forms of Documents Delivered to Trustee
	 	 	11	 
	SECTION 1.4. Acts of Holders
	 	 	12	 
	SECTION 1.5. Notices, Etc. to Trustee and Company
	 	 	14	 
	SECTION 1.6. Notice to Holders; Waiver
	 	 	15	 
	SECTION 1.7. Effect of Headings and Table of Contents
	 	 	15	 
	SECTION 1.8. Successors and Assigns
	 	 	15	 
	SECTION 1.9. Separability Clause
	 	 	15	 
	SECTION 1.10. Benefits of Indenture
	 	 	15	 
	SECTION 1.11. Governing Law
	 	 	15	 
	SECTION 1.12. Submission to Jurisdiction
	 	 	16	 
	SECTION 1.13. Non-Business Days
	 	 	16	 
	SECTION 1.14. Shareholder Communications Act
	 	 	16	 
	 
	 	 	 	 
	ARTICLE II Security Forms
	 	 	17	 
	SECTION 2.1. Form of Security
	 	 	17	 
	SECTION 2.2. Restricted Legend
	 	 	21	 
	SECTION 2.3. Form of Trustee’s Certificate of Authentication
	 	 	24	 
	SECTION 2.4. Temporary Securities
	 	 	24	 
	SECTION 2.5. Definitive Securities
	 	 	24	 
	 
	 	 	 	 
	ARTICLE III The Securities
	 	 	25	 
	SECTION 3.1. Payment of Principal and Interest
	 	 	25	 
	SECTION 3.2. Denominations
	 	 	27	 
	SECTION 3.3. Execution, Authentication, Delivery and Dating
	 	 	27	 
	SECTION 3.4. Global Securities
	 	 	28	 
	SECTION 3.5. Registration, Transfer and Exchange Generally
	 	 	30	 
	SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	31	 
	SECTION 3.7. Persons Deemed Owners
	 	 	32	 
	SECTION 3.8. Cancellation
	 	 	32	 
	SECTION 3.9. Reserved
	 	 	33	 
	SECTION 3.10. Reserved
	 	 	33	 
	SECTION 3.11. Agreed Tax Treatment
	 	 	33	 
	SECTION 3.12. CUSIP Numbers
	 	 	34	 
	 
	 	 	 	 
	ARTICLE IV Satisfaction and Discharge
	 	 	34	 
	 
	 	 	 	 
	SECTION 4.1. Satisfaction and Discharge of Indenture
	 	 	34	 
	SECTION 4.2. Application of Trust Money
	 	 	35	 






 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE V Remedies
	 	 	36	 
	 
	 	 	 	 
	SECTION 5.1. Events of Default
	 	 	36	 
	SECTION 5.2. Acceleration of Maturity; Rescission and Annulment
	 	 	37	 
	SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	38	 
	SECTION 5.4. Trustee May File Proofs of Claim
	 	 	38	 
	SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities
	 	 	39	 
	SECTION 5.6. Application of Money Collected
	 	 	39	 
	SECTION 5.7. Limitation on Suits
	 	 	39	 
	SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium, if any, and Interest
	 	 	40	 
	SECTION 5.9. Restoration of Rights and Remedies
	 	 	40	 
	SECTION 5.10. Rights and Remedies Cumulative
	 	 	40	 
	SECTION 5.11. Delay or Omission Not Waiver
	 	 	41	 
	SECTION 5.12. Control by Holders
	 	 	41	 
	SECTION 5.13. Waiver of Past Defaults
	 	 	41	 
	SECTION 5.14. Undertaking for Costs
	 	 	42	 
	SECTION 5.15. Waiver of Usury, Stay or Extension Laws
	 	 	42	 
	 
	 	 	 	 
	ARTICLE VI The Trustee
	 	 	42	 
	 
	 	 	 	 
	SECTION 6.1. Corporate Trustee Required
	 	 	42	 
	SECTION 6.2. Certain Duties and Responsibilities
	 	 	43	 
	SECTION 6.3. Notice of Defaults
	 	 	44	 
	SECTION 6.4. Certain Rights of Trustee
	 	 	44	 
	SECTION 6.5. May Hold Securities
	 	 	46	 
	SECTION 6.6. Compensation; Reimbursement; Indemnity
	 	 	46	 
	SECTION 6.7. Resignation and Removal; Appointment of Successor
	 	 	47	 
	SECTION 6.8. Acceptance of Appointment by Successor
	 	 	48	 
	SECTION 6.9. Merger, Conversion, Consolidation or Succession to Business
	 	 	49	 
	SECTION 6.10. Not Responsible for Recitals or Issuance of Securities
	 	 	49	 
	SECTION 6.11. Appointment of Authenticating Agent
	 	 	49	 
	 
	 	 	 	 
	ARTICLE VII Holder’s Lists and Reports by Company
	 	 	52	 
	 
	 	 	 	 
	SECTION 7.1. Securities Registrar to Furnish Trustee Names and Addresses of Holders
	 	 	52	 
	SECTION 7.2. Preservation of Information, Communications to Holders
	 	 	52	 
	SECTION 7.3. Reports by Company
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease
	 	 	54	 
	 
	 	 	 	 
	SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms
	 	 	54	 
	SECTION 8.2. Successor Company Substituted
	 	 	54	 
	 
	 	 	 	 
	ARTICLE IX Supplemental Indentures
	 	 	55	 
	 
	 	 	 	 
	SECTION 9.1. Supplemental Indentures without Consent of Holders
	 	 	55	 
	SECTION 9.2. Supplemental Indentures with Consent of Holders
	 	 	56	 
	SECTION 9.3. Execution of Supplemental Indentures
	 	 	57	 
	SECTION 9.4. Effect of Supplemental Indentures
	 	 	57	 
	SECTION 9.5. Reference in Securities to Supplemental Indentures
	 	 	57	 






 


(ii) 









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE X Covenants
	 	 	57	 
	SECTION 10.1. Payment of Principal, Premium, if any, and Interest
	 	 	57	 
	SECTION 10.2. Money for Security Payments to be Held in Trust
	 	 	57	 
	SECTION 10.3. Statement as to Compliance
	 	 	58	 
	SECTION 10.4. Calculation Agent
	 	 	59	 
	SECTION 10.5. Pledge of Certain Collateral
	 	 	59	 
	SECTION 10.6. Additional Covenants
	 	 	63	 
	SECTION 10.7. Waiver of Covenants
	 	 	64	 
	SECTION 10.8. Treatment of Securities
	 	 	64	 
	 
	 	 	 	 
	ARTICLE XI Redemption of Securities
	 	 	65	 
	 
	 	 	 	 
	SECTION 11.1. Optional Redemption
	 	 	65	 
	SECTION 11.2. Tax Event Redemption
	 	 	65	 
	SECTION 11.3. Election to Redeem; Notice to Trustee
	 	 	65	 
	SECTION 11.4. Selection of Securities to be Redeemed
	 	 	65	 
	SECTION 11.5. Notice of Redemption
	 	 	66	 
	SECTION 11.6. Deposit of Redemption Price
	 	 	67	 
	SECTION 11.7. Payment of Securities Called for Redemption
	 	 	67	 
	 
	 	 	 	 
	ARTICLE XII Subordination of Securities
	 	 	67	 
	 
	 	 	 	 
	SECTION 12.1. Securities Subordinate to Senior Debt
	 	 	67	 
	SECTION 12.2. No Payment When Senior Debt in Default;
Payment Over of Proceeds Upon Dissolution,
Etc.
	 	 	68	 
	SECTION 12.3. Payment Permitted If No Default
	 	 	69	 
	SECTION 12.4. Subrogation to Rights of Holders of Senior Debt
	 	 	70	 
	SECTION 12.5. Provisions Solely to Define Relative Rights
	 	 	70	 
	SECTION 12.6. Trustee to Effectuate Subordination
	 	 	70	 
	SECTION 12.7. No Waiver of Subordination Provisions
	 	 	70	 
	SECTION 12.8. Notice to Trustee
	 	 	71	 
	SECTION 12.9. Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	72	 
	SECTION 12.10. Trustee Not Fiduciary for Holders of Senior Debt
	 	 	72	 
	SECTION 12.11. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights
	 	 	72	 
	SECTION 12.12. Article Applicable to Paying Agents
	 	 	72	 
	 
	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	Schedule A — Determination of LIBOR
	 	 	 	 
	 
	 	 	 	 
	Exhibit A — Form of Officer’s Financial Certificate
	 	 	 	 










 


(iii)









 





Junior Subordinated Indenture, dated as of April 30, 2009, between NEWCASTLE
INVESTMENT CORP., a Maryland corporation (the “Company”), and THE BANK OF NEW YORK MELLON TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association, as Trustee (in such capacity, the
“Trustee”).



Recitals of the Company




Whereas, the Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its junior subordinated notes 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.



“Account” shall mean that certain reserve account with Trustee into which Pledged Collateral
consisting of cash shall be deposited, as more fully described in the Pledge, Security Agreement
and Account Control Agreement.



“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.




“Administration Action” has the meaning specified in the definition of Tax Event.



“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.



“Allocation Percentage” means the principal amount of Securities represented by a Note as a
percentage of the aggregate principal amount of all outstanding Securities issued under this
Indenture. The Allocation Percentage may be increased to reflect Securities cancelled, redeemed or
otherwise retired in any manner permitted under the terms of this Indenture or reduced to reflect
additional Securities issued in any manner permitted under the terms of this Indenture.



“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.


 


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“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.



“Company Request” and “Company Order” mean, respectively, the written request or order signed
in the name of the Company by an authorized officer of the Company and delivered to the Trustee,
pursuant to a Board Resolution.



“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.



“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 601 Travis Street, 16th Floor, Houston, Texas 77019, Attn: Global
Corporate Trust- Newcastle Investment Corp. Initially, all notices and correspondence shall be
addressed to Mudassir Mohamed, telephone number (713) 483-6029.



“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.



“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.


 


- 3 -









 





“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.




“EDGAR” has the meaning specified in Section 7.3(c).



“Equity Interests” means with respect to any person (a) if such Person is a partnership, the
partnership interests (general or limited) in a partnership, (b) if such Person is a limited
liability company, the membership interests in a limited liability company and (c) if such Person
is a corporation, 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.



“Exchange Agreement” means that certain Exchange Agreement executed and delivered
contemporaneously with this Indenture by and among the Company and the parties named therein.




“Expiration Date” has the meaning specified in Section 1.4(h).




“Financing Entity” has the meaning specified in the definition of Senior Debt.



“Fixed Rate” means a fixed rate equal to (a) for the Interest Period commencing on April 30,
2009 and for each Interest Period thereafter through and including the Interest Period immediately
preceding the Interest Period during which the Modification Period Termination Date occurs, a fixed
rate equal to one percent (1%) per annum; and (b) for the Interest Period commencing on the earlier
of (i) July 30, 2010 and (ii) the first day of the Interest Period during which such Modification
Period Termination Date occurs, and for each consecutive Interest Period thereafter through and
including April 29, 2016, a fixed rate equal to seven and five hundred seventy-four one thousandths
percent (7.574%) per annum.




“Fixed Rate Period” has the meaning set forth in Section 2.1.



“GAAP” means United States generally accepted accounting principles, consistently applied,
from time to time in effect.



“Global Security” means a Security that evidences all or part of the Securities, the ownership
and transfers of which shall be made through book entries by a Depositary.


 


- 4 -









 





“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.



“Indenture Documents” means this Indenture, the Securities, the Pledge and Security Agreement
and the Pledge, Security Agreement and Account Control Agreement, as such documents may be
modified, amended, supplemented, restated or replaced from time to time.



“Interest Payment Date” means January 30, April 30, July 30 and October 30 of each year,
commencing on July 30, 2009 during the term of this Indenture.



“Interest Period” means the period commencing on, and including, an Interest Payment Date and
continuing through and including the day prior to the next succeeding Interest Payment Date. The
period from April 30, 2009 through July 29, 2009 shall be considered to be an Interest Period
notwithstanding the fact that April 30, 2009 is not an Interest Payment Date.



“Investment Company Act” means the Investment Company Act of 1940 or any successor statute
thereto, in each case as amended from time to time.




“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.



“Mezzanine Loan” has the meaning specified in the definition of Participation Interest.


 


- 5 -









 





“Modification Period” means the period commencing as of April 30, 2009 and continuing through,
and including, July 29, 2010, unless otherwise terminated in accordance with Section 3.1(g)
in which case the Modification Period shall terminate on the Modification Period Termination Date.



“Modification Period Termination Date” means the earlier of (a) July 29, 2010 and (b) a date
prior to July 29, 2010 selected by the Company in accordance with the terms of Section
3.1(g).




“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.




“Other Taxes” has the meaning set forth in Section 3.11(c).



“Outstanding” means, when used in reference to any Securities, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture, except:




(i) Securities theretofore canceled by the Trustee or delivered to the Trustee
for cancellation;




(ii) Securities for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; provided, that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and




(iii) Securities that have been paid or in substitution for or in lieu of which
other Securities have been authenticated and delivered pursuant to the provisions of
this Indenture, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding and
legal obligations of the Company;



provided, that in determining whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, any 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.


 


- 6 -









 





“Paying Agent” means the Trustee or any Person (other than the Company or any Affiliate of the
Company) authorized by the Trustee to pay the principal of or any premium or interest on, or other
amounts in respect of, any Securities on behalf of the Company.



“Participation Agreement” means that certain Participation Agreement, dated as of February 7,
2005, by and among Fortress Credit Corp., as the Initial Noteholder, Drawbridge Special
Opportunities Fund LP, Dune Capital Funding V, LLC, Blackacre Institutional Capital Management,
LLC, the Company, German American Capital Corporation and PCRL Investments L.P., as the Initial
Participants, as the same may be modified, amended, restated or supplemented from time to time.



“Participation Interest” means that certain A-4 Participation Interest in the amount of
$23,125,000 in that certain Mezzanine Loan (the “Mezzanine Loan”) in the maximum principal amount
of $130,000,000 made by Fortress Credit Corp. as of February 7, 2005 to 401 Mezz Venture LLC, a
Delaware limited liability company, the owner of one hundred percent (100%) of the ownership
interest in 401 North Wabash Venture LLC, a Delaware limited liability company, the owner of
certain property known as the Trump International Chicago Hotel and Tower (the “Trump Property”).



“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.



“Pledge and Security Agreement” shall mean that certain Pledge and Security Agreement dated as
of April 30, 2009 from the Company in favor of the Trustee on behalf of the Holders, wherein the
Company has pledged and granted a security interest in certain Collateral as described therein.



“Pledge, Security Agreement and Account Control Agreement” shall mean that certain Pledge,
Security Agreement and Account Control Agreement dated as of April 30, 2009 from the Pledged Entity
in favor of the Trustee on behalf of the Holders and acknowledged and agreed by the Company.



“Pledged Collateral” means, collectively (a) all Collateral, as defined in the Pledge,
Security Agreement and Account Control Agreement, and (b) all Collateral, as defined in the Pledge
and Security Agreement.


 


- 7 -









 





“Pledged Entity” means NIC TP LLC, a Delaware limited liability, that is wholly owned and
Controlled by the Company (subject to any rights vested in the Trustee created by the Indenture
Documents).



“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.



“Principal Sum” means the aggregate principal amount of all Securities, which shall increase
automatically and shall be equal to: (a) $101,700,000, for the period commencing on April 30, 2009
and continuing through and including October 29, 2009; (b) $102,500,000, for the period commencing
on October 30, 2009 and continuing through and including January 29, 2010; (c) $103,300,000 for the
period commencing on January 30, 2010 and continuing through and including April 29, 2010; (d)
$104,100,000, for the period commencing on April 30, 2010 and continuing through and including July
29, 2010; and (e) thereafter, $104,900,000; provided, however, that if and at such time as the
Modification Period Termination Date has occurred, the Principal Sum shall be fixed at an amount
equal to the then current amount of the Principal Sum in effect as of such Modification Period
Termination Date. The Principal Sum may also be reduced in another manner permitted under the
terms of this Indenture. The Principal Sum may be allocated to separate Securities to be issued
hereunder and, in such instance, all amounts due and payable hereunder and under the Indenture
Documents shall be allocated to the applicable Holders of the Securities on a pro rata basis, based
upon the applicable allocated amount of their respective Securities.




“Proceeding” has the meaning specified in Section 12.2(b).




“Release of Collateral” has the meaning specified in Section 10.5(c).




“Release Notice” has the meaning set forth in Section 10.5(c).



“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 Tax Redemption Price or the Optional Redemption Price, as applicable, at which such
Security or portion thereof is to be redeemed as fixed by or pursuant to this Indenture.




“Reference Banks” has the meaning specified in Schedule A.



“Regular Record Date” for the interest payable on any Interest Payment Date with respect to
the Securities means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).


 


- 8 -









 





“Responsible Officer” means, when used with respect to the Trustee, the officer in the
Worldwide Securities Services department of the Trustee having direct responsibility for the
administration of this Indenture.



“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.




“SCA” has the meaning specified in Section 1.14.



“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.1.




“Stated Maturity” means April 30, 2035.



“Subsidiary” of a Person means (a) any corporation more than fifty percent (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 fifty percent (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.


 


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“Taberna Capital Management, LLC” means Taberna Capital Management, LLC and its successors
and/or assigns as collateral manager of the Holders, as applicable.



“Tax Event” means the receipt by the Company of an Opinion of Counsel experienced in such
matters to the effect that, as a result of (a) any amendment to or change (including any announced
prospective change) in the laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein or (b) any judicial decision or any official
administrative pronouncement (including any private letter ruling, technical advice memorandum or
field service advice) or regulatory procedure, including any notice or announcement of intent to
adopt any such pronouncement or procedure (an “Administrative Action”), regardless of whether such
judicial decision or Administrative Action is issued to or in connection with a proceeding
involving the Company or the Trust and whether or not subject to review or appeal, which amendment,
change, judicial decision or Administrative Action is enacted, promulgated or announced, in each
case, on or after the date of issuance of the Securities, there is more than an insubstantial risk
that interest payable by the Company on the Securities is not, or within ninety (90) days of the
date of such opinion, will not be, deductible by the Company, in whole or in part, for United
States federal income tax purposes.




“Trump Property” has the meaning specified in the definition of Participation Interest.



“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.



“Trustee Direction” has the meaning specified in Section 10.5(d).



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.


 


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(b) Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate provided pursuant to
Section 10.3) shall include:




(i) a statement by each individual signing such certificate or opinion that
such individual has read such covenant or condition and the definitions herein
relating thereto;




(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions of such individual contained in
such certificate or opinion are based;




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




(iv) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.




SECTION 1.3. Forms of Documents Delivered to Trustee.




(a) In any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.




(b) Any certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or after reasonable inquiry should know, that the certificate or
opinion or representations with respect to matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such counsel
knows, or after reasonable inquiry should know, that the certificate or opinion or
representations with respect to such matters are erroneous.




(c) Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.




(d) Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
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.


 


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SECTION 1.4. Acts of Holders.




(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given to or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent thereof duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments
(including any appointment of an agent) is or are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.4.




(b) The fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by the certificate of any
notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by a Person acting in other than his or her
individual capacity, such certificate or affidavit shall also constitute sufficient proof of
his or her authority. The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine.




(c) The ownership of Securities shall be proved by the Securities Register.




(d) Any request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such action is made
upon such Security.




(e) Without limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such principal amount.


 


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(f) Except as set forth in paragraph (g) of this Section 1.4, the Company may
set any day as a record date for the purpose of determining the Holders of Outstanding
Securities entitled to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders of Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided, that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date (as defined in Section 1.4(h))
by Holders of the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect). Promptly after any record date is set pursuant
to this paragraph, the Company, at its own expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities in the manner set forth in Section 1.6.




(g) The Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making of (i) any Notice
of Default, (ii) any declaration of acceleration or rescission or annulment thereof referred
to in Section 5.2, (iii) any request to institute proceedings referred to in
Section 5.7(b) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such record date;
provided, that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect). Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 1.6.




(h) With respect to any record date set pursuant to paragraph (f) or (g) of this
Section 1.4, the party hereto that sets such record date may designate any day as
the “Expiration Date” and from time to time may change the Expiration Date to any earlier or
later day; provided, that no such change shall be effective unless notice of the proposed
new Expiration Date is given to the other party hereto in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any record date
set pursuant to this Section 1.4, the party hereto that set such record date shall
be deemed to have initially designated the ninetieth (90th) day after such record
date as the
Expiration Date with respect thereto, subject to its right to change the Expiration
Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall
be later than the one hundred eightieth (180th) day after the applicable record
date.


 


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SECTION 1.5. Notices, Etc. to Trustee and Company.



(a) 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:




(i) the Trustee by any Holder, 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




(ii) the Company by the Trustee, or any Holder shall be sufficient for every
purpose hereunder if in writing and mailed, first class, postage prepaid, to the
Company addressed to it at 1345 Avenue of the Americas, New York, NY 10105 or at any
other address previously furnished in writing to the Trustee by the Company.



(b) The Trustee may, but is not required to, rely upon and comply with instructions and
directions sent by e-mail or facsimile, (or any other reasonable means of communication) by persons
believed by the Trustee in good faith to be authorized to provide such instructions or direction;
provided, however, that the Trustee may require such additional evidence, confirmation or
certification from any such party or parties as the Trustee, in its reasonable discretion, deems
necessary or advisable before acting or refraining from acting upon any such instruction or
direction.



(c) The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods; provided, however, that any Person providing such instructions or directions shall provide
to the Trustee an incumbency certificate listing such designated persons, which incumbency
certificate shall be amended whenever a person is to be added or deleted from the listing. If such
Person elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the
Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be
liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance
upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. Each Person providing instructions or
directions to the Trustee hereunder agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting, in good faith, on unauthorized instructions, and the
risk of interception and misuse by third parties.


 


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SECTION 1.6. Notice to Holders; Waiver.



Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first
class, postage prepaid, to each Holder affected by such event to the address of such Holder as
it appears in the Securities Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. If, by reason of the
suspension of or irregularities in regular mail service or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.




SECTION 1.7. Effect of Headings and Table of Contents.



The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction of this Indenture.




SECTION 1.8. Successors and Assigns.



This Indenture shall be binding upon and shall inure to the benefit of any successor to the
Company and the Trustee, including any successor by operation of law. Except in connection with a
transaction involving the Company that is permitted under Article VIII and pursuant to
which the assignee agrees in writing to perform the Company’s obligations hereunder, the Company
shall not assign its obligations hereunder.




SECTION 1.9. Separability Clause.



If any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and there shall be deemed substituted for the provision at
issue a valid, legal and enforceable provision as similar as possible to the provision at issue.




SECTION 1.10. Benefits of Indenture.



Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors and assigns, the holders of Senior Debt, the
Holders of the Securities any benefit or any legal or equitable right, remedy or claim under this
Indenture.




SECTION 1.11. Governing Law.



This Indenture and the rights and obligations of each of the Holders, the Company and the
Trustee shall be construed and enforced in accordance with and governed by the laws of the State of
New York without reference to its conflict of laws provisions (other than section 5-1401 of the
General Obligations Law).


 


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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.




SECTION 1.14. Shareholder Communications Act



(a) With respect to securities under and as defined in the Shareholders Communications Act of
1985 (the “SCA”) issued in the United States, the SCA requires the Trustee to disclose to the
issuers, upon their request, the name, address and securities position of its customers who are (i)
the “beneficial owners” (as defined in the SCA) of the issuer’s securities, if the beneficial owner
does not object to such disclosure, or (ii) acting as a “respondent bank” (as defined in the SCA)
with respect to the securities. (Under the SCA, “respondent banks” do not have the option of
objecting to such disclosure upon the issuers’ request.) The SCA defines a “beneficial owner” as
any person who has, or shares, the power to vote a security (pursuant to an agreement or
otherwise), or who directs the voting of a security. The SCA defines a “respondent bank” as any
bank, association or other entity that exercises fiduciary powers which holds securities on behalf
of beneficial owners and deposits such securities for safekeeping with a bank, such as Trustee.
Under the SCA, each Holder is either the “beneficial owner” or a “respondent bank.”



(b) For Purposes of this Indenture, until Trustee receives a contrary written instruction from
a Holder, Trustee shall assume that such Holder is the beneficial owner of the Securities.


 


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(c) For purposes of this Indenture, until Trustee receives a contrary instruction from a
Holder, Trustee shall release the name, address and securities position to the Company, if the
Company requests such information pursuant to the SCA for the specific purpose of direct
communications between the Company and such Holder. With respect to securities issued outside of
the United States, if applicable, information shall be released to issuers only if required by law
or regulation of the particular country in which the securities are located.



ARTICLE II




Security Forms





SECTION 2.1. Form of Security.




Any Security issued hereunder shall be in substantially the following form:



NEWCASTLE INVESTMENT CORP.

Junior Subordinated Note due 2035




			
	 	 	 
	No.                     
	 	$[                    ]






Newcastle Investment Corp., a corporation organized and existing under the laws of Maryland
(hereinafter called the “Company,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to                                         , or
registered assigns, the principal sum of [                     Dollars ($                    ]) on April 30, 2035 or such
other Principal Sum as may be applicable as provided below. At issuance the Allocation Percentage
applicable to this Note is                     %. Holders of Securities shall only be entitled to receive payments
due hereunder based on the applicable Allocation Percentage.



The Principal Sum shall be automatically increased as follows: (a) during the period
commencing on April 30, 2009 and continuing through and including October 29, 2009, the Principal
Sum shall be fixed at One Hundred One Million Seven Hundred Thousand Dollars ($101,700,000); (b)
during the period commencing on October 30, 2009 and continuing through and including January 29,
2010, the Principal Sum shall be fixed at One Hundred Two Million Five Hundred Thousand Dollars
($102,500,000); (c) during the period commencing on January 30, 2010 and continuing through and
including April 29, 2010, the Principal Sum shall be fixed at One Hundred Three Million Three
Hundred Thousand Dollars ($103,300,000) (d) during the period commencing on April 30, 2010 and
continuing through and including July 29, 2010, the Principal Sum shall be fixed at One Hundred
Four Million One Hundred Thousand Dollars ($104,100,000) and (d) thereafter, the Principal Sum
shall be fixed at One Hundred Four Million Nine Hundred Thousand Dollars ($104,900,000), provided,
however, at such time as the Modification Period Termination Date has occurred, the Principal Sum
shall be set at an amount equal to the then current amount of the Principal Sum in effect as of
such Modification Period Termination Date and shall only be subject to increases and decreases of
principal as otherwise
provided in the Indenture. All increases in the Principal Sum shall be automatic and shall not
require the reissuance or execution of such Note by the Company or any authentication of such Note
by the Trustee.


 


- 17 -









 





The Company further promises to pay interest on the Allocation Percentage of the then
applicable Principal Sum from April 30, 2009, 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, or if any such day is not a Business Day, on the next
succeeding Business Day (and no interest shall accrue in respect of the amounts whose payment is so
delayed for the period from and after such Interest Payment Date until such next succeeding
Business Day), except that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case, with the same force
and effect as if made on the Interest Payment Date, at a fixed rate equal to applicable Fixed Rate
per annum through the Interest Payment Date in April, 2016 (“Fixed Rate Period”) and
thereafter 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, and any overdue installment of interest shall bear Additional Interest
at a fixed rate equal to the applicable Fixed Rate accruing such period through the Interest
Payment Date in April, 2016 and thereafter 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.



During the Fixed Rate Period, the amount of interest payable shall be computed on the basis of
a 360-day year of twelve 30-day months and the amount payable for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve 30-day months.
Upon expiration of the Fixed Rate Period, the amount of interest payable for any Interest Period
will be computed on the basis of a 360-day year and the actual number of days elapsed in the
relevant Interest Period. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest installment. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than ten (10) days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Securities may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.



Payment of principal of, premium, if any, and interest on this Security shall be made in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payments of principal, premium, if any, and interest due at
the Maturity of this Security shall be made at the Place of Payment upon surrender of such
Securities to the Paying Agent, and payments of interest shall be made, subject to such surrender
where applicable, by wire transfer at such place and to such account at a banking institution in
the United States as may be designated in writing to the Paying Agent at least ten (10)
Business Days prior to the date for payment by the Person entitled thereto unless proper written
transfer instructions have not been received by the relevant record date, in which case such
payments shall be made by check mailed to the address of such Person as such address shall appear
in the Security Register.


 


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The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Debt, and
this Security is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may
be necessary or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said provisions.



Unless the certificate of authentication hereon has been executed by the Trustee by manual
signature, this Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.



[FORM OF REVERSE OF SECURITY]




This Security is one of a duly authorized issue of securities of the Company (the
“Securities”) issued under the Junior Subordinated Indenture, dated as of April 30, 2009 (the
“Indenture”), between the Company and The Bank of New York Mellon Trust Company, National
Association, as Trustee (in such capacity, the “Trustee,” which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holders of Senior Debt 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 April 30, 2011 and subject
to the terms and conditions of Article XI of the Indenture, redeem this Security in whole
at any time or in part from time to time at a Redemption Price equal to one hundred percent (100%)
of the principal amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, through but excluding the date fixed as the Redemption
Date.


 


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In addition, upon the occurrence and during the continuation of a Tax Event, the Company may,
at its option, upon not less than thirty (30) days’ nor more than sixty (60) days’ written notice
to the Holders of the Securities (unless a shorter notice period shall be satisfactory
to the Trustee), redeem this Security, in whole but not in part, subject to the terms and
conditions of Article XI of the Indenture at a Redemption Price equal to one hundred seven
and one half percent (107.5%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through but excluding the
date fixed as the Redemption Date.



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 aggregate principal
amount of the Outstanding Securities. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities, on behalf of the Holders of all
Securities, to waive compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.



No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium, if any, and interest, including any Additional Interest (to the
extent legally enforceable), on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.



As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is restricted to transfers to “Qualified Purchasers” (as such term is
defined in the Investment Company Act of 1940, as amended), and is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the office or agency of
the Company maintained for such purpose, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Securities Registrar and duly executed by,
the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more
new Securities, of like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.



The Securities are issuable only in registered form without coupons in minimum denominations
of $100,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities are exchangeable for a
like aggregate principal amount of Securities and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.


 


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No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.



The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.



The Company and, by its acceptance of this Security or a beneficial interest herein, the
Holder of, and any Person that acquires a beneficial interest in, this Security agree that, for
United States federal, state and local tax purposes, it is intended that this Security constitute
indebtedness.



This Security shall be construed and enforced in accordance with and governed by the laws of
the State of New York, without reference to its conflict of laws provisions (other than section
5-1401 of the General Obligations Law).



IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed on this                     
day of                     , 20
 _____.



	 	 	 	 	 
	 	Newcastle Investment Corp.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 





SECTION 2.2. Restricted Legend.




(a) Any Security issued hereunder shall bear a legend in substantially the following
form:




“[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER
THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF
DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


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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 SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY OR (B) (I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED), AND (II) (Z) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (Y) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN
THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED
INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (X) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (W) PURSUANT TO AN EXEMPTION
FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (Y)
OR (W), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION OF COUNSEL AND OTHER
INFORMATION REASONABLY SATISFACTORY TO THE COMPANY (PROVIDED THAT IF SUCH OPINION AND
INFORMATION STATES THAT THE PROPOSED OFFER, RESALE OR OTHER
TRANSFER WILL BE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS, THE COMPANY MAY NOT OBJECT
THERETO). IN ADDITION, EACH HOLDER FURTHER AGREES THAT IT WILL NOTIFY ANY PURCHASER OF ANY
SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE PRECEDING SENTENCE.


 


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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. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE
BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR
PLAN TO FINANCE SUCH PURCHASE.”




(b) The above legends shall not be removed from any Security unless there is delivered
to the Company satisfactory evidence, which may include an Opinion of Counsel, as may be
reasonably required to ensure that any future transfers thereof may be made without
restriction under or violation of the provisions of the Securities Act and other applicable
law. Upon provision of such satisfactory evidence, the Company shall execute and deliver to
the Trustee, and the Trustee shall deliver, upon receipt of a Company Order directing it to
do so, a Security that does not bear the legend.


 


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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 within mentioned Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 
	Dated:	 THE BANK OF NEW YORK MELLON TRUST 

COMPANY, NATIONAL ASSOCIATION, 

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.




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.


 


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ARTICLE III




The Securities





SECTION 3.1. Payment of Principal and Interest.



(a) The unpaid Principal Sum shall bear interest at a fixed rate equal to the applicable Fixed
Rate per annum through the Interest Payment Date in April, 2016 and thereafter 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 a fixed rate equal to the applicable Fixed Rate per
annum in effect during the period such Additional Interest accrues through the Interest Payment
Date in April, 2016 and thereafter at 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. The initial payment of interest on any Security that is
issued between a Regular Record Date and the related Interest Payment Date shall be payable
as provided in such Security.




(c) Any interest on any Security that is due and payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in paragraph (i) or (ii)
below:




(i) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on a special record date for the payment of
such Defaulted Interest (a “Special Record Date”), which shall be fixed in the
following manner. At least thirty (30) days prior to the date of the proposed
payment, the Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest. Thereupon
the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest, which shall be not more than fifteen (15)
days and not less than ten (10) days prior to the date of the proposed payment and
not less than ten (10) days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a Security at
the address of such Holder as it appears in the Securities Register not less than
ten (10) days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered on such Special Record
Date; or


 


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(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
interdealer quotation system on which the Securities may be listed, traded or quoted
and, upon such notice as may be required by such exchange or interdealer quotation
system (or by the Trustee if the Securities are not so listed or quoted), if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.




(d) Payments of interest on the Securities shall include interest accrued to but
excluding the respective Interest Payment Dates. During the Fixed Rate Period, the amount
of interest payable shall be computed on the basis of a 360-day year of twelve 30-day months
and the amount payable for any partial period shall be computed on the basis of the number
of days elapsed in a 360-day year of twelve 30-day months. Upon expiration of the Fixed
Rate Period, the amount of interest payable for any Interest Period will be computed on the
basis of a 360-day year and the actual number of days elapsed in the relevant interest
period.




(e) Payment of principal of, premium, if any, and interest on the Securities shall be
made in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. Payments of principal, premium, if
any, and interest due at the Maturity of such Securities shall be made at the Place of
Payment upon surrender of such Securities to the Paying Agent and payments of interest shall
be made subject to such surrender where applicable, by wire transfer at such place and to
such account at a banking institution in the United States as may be designated in writing
to the Paying Agent at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written transfer instructions have not been received
by the relevant record date, in which case such payments shall be made by check mailed to
the address of such Person as such address shall appear in the Security Register.




(f) Intentionally Omitted.




(g) The Company may, at its option from time to time, upon not less than three (3)
Business Days written notice to the Trustee (with a copy to Chuck Logan at The Bank of new
York Mellon Global Trust, N.A., 525 William Penn Boulevard, 8th Floor, Pittsburg,
Pennsylvania 15259, Facsimile: (412) 236-1141) and the Holders, elect to terminate the
Modification Period.


 


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(h) 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 One Hundred Four Million Nine Hundred
Thousand Dollars ($104,900,000) executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Securities, and
the Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:




(i) a copy of any Board Resolution relating thereto; and




(ii) an Opinion of Counsel stating that: (1) such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will constitute,
and the Indenture constitutes, valid and legally binding obligations of the Company,
each enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles; (2) the Securities have been duly authorized and executed by the Company
and have been delivered to the Trustee for authentication in accordance with this
Indenture; (3) the Securities are not required to be registered under the Securities
Act; and (4) the Indenture is not required to be qualified under the Trust Indenture
Act.




(b) The Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its President or one of
its Vice Presidents. The signature of any of these officers on the Securities may be manual
or facsimile. Securities bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.


 


- 27 -









 






(c) No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the Trustee by the
manual signature of one of its authorized signatories, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.8, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.




(d) Each Security shall be dated the date of its authentication.




SECTION 3.4. Global Securities.




(a) Upon the election of the Holder after the Original Issue Date, which election need
not be in writing, the Securities owned by such Holder shall be issued in the form of one or
more Global Securities registered in the name of the Depositary or its nominee. Each Global
Security issued under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and delivered to
such Depositary or a nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.




(b) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for registered Securities, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (i) such Depositary advises
the Trustee and the Company in writing that such Depositary is no longer willing or able to
properly discharge its responsibilities as Depositary with respect to such Global Security,
and no qualified successor is appointed by the Company within ninety (90) days of receipt by
the Company of such notice, (ii) such Depositary ceases to be a clearing agency registered
under the Exchange Act and no successor is appointed by the Company within ninety (90) days
after obtaining knowledge of such event, (iii) the Company executes and delivers to the
Trustee a Company Order stating that the Company elects to terminate the book-entry system
through the Depositary or (iv) an Event of Default shall have occurred and be continuing.
Upon the occurrence of any event specified in clause (i), (ii), (iii) or (iv) above, the
Trustee shall notify the Depositary and instruct the Depositary to notify all owners of
beneficial interests in such Global Security of the occurrence of such event and of the
availability of Securities to such owners of beneficial interests requesting the same. The
Trustee may conclusively rely, and be protected in relying, upon the written identification
of the owners of beneficial
interests furnished by the Depositary, and shall not be liable for any delay resulting
from a delay by the Depositary. Upon the issuance of such Securities and the registration
in the Securities Register of such Securities in the names of the Holders of the beneficial
interests therein, the Trustees shall recognize such holders of beneficial interests as
Holders.


 


- 28 -









 






(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.




(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.


 


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(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.


 


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(f) No service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer or exchange of
Securities.




(g) Neither the Company nor the Trustee shall be required pursuant to the provisions of
this Section 3.5(g): (i) to issue, register the transfer of or exchange any
Security during a period beginning at the opening of business fifteen (15) days before the
day of selection for redemption of Securities pursuant to Article XI and ending at
the close of business on the day of mailing of the notice of redemption or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or in part,
except, in the case of any such Security to be redeemed in part, any portion thereof not to
be redeemed.




(h) The Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration or transfer or exchange. The Company
initially designates the Corporate Trust Office as its office and agency for such purposes.
The Company shall give prompt written notice to the Trustee and to the Holders of any change
in the location of any such office or agency.




(i) The Securities may only be transferred to a “Qualified Purchaser” as such term is
defined in Section 2(a)(51) of the Investment Company Act.




(j) Neither the Trustee nor the Securities Registrar shall be responsible for
ascertaining whether any transfer hereunder complies with the registration provisions of or
any exemptions from the Securities Act, applicable state securities laws or the applicable
laws of any other jurisdiction, ERISA, the Code, or the Investment Company Act; provided,
that if a certificate is specifically required by the express terms of this Section 3.5 to
be delivered to the Trustee or the Securities Registrar by a Holder or transferee of a
Security, the Trustee and the Securities Registrar shall be under a duty to receive and
examine the same to determine whether or not the certificate substantially conforms on its
face to the requirements of this Indenture and shall promptly notify the party delivering
the same if such certificate does not comply with such terms.




SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.




(a) If any mutilated Security is surrendered to the Trustee together with such security
or indemnity as may be required by the 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.


 


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(b) If there shall be delivered to the Trustee (i) evidence to its satisfaction of the
destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by it to save each of the Company and the Trustee harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a
new Security of like tenor and aggregate principal amount as such destroyed, lost or stolen
Security, and bearing a number not contemporaneously outstanding.




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




(d) Upon the issuance of any new Security under this Section 3.6, the Company
may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.




(e) Every new Security issued pursuant to this Section 3.6 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.




(f) The provisions of this Section 3.6 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.




SECTION 3.7. Persons Deemed Owners.



The Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in
whose name any Security is registered as the owner of such Security for the purpose of receiving
payment of principal of and any interest on such Security and for all other purposes whatsoever,
and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.




SECTION 3.8. Cancellation.



All Securities surrendered for payment, redemption, transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and
Securities surrendered directly to the Trustee for any such purpose shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section
3.8, except as expressly permitted by this Indenture. All canceled Securities shall be
retained or disposed of by the Trustee in accordance with its customary practices and the Trustee
shall deliver to the Company a certificate of such disposition.


 


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SECTION 3.9. Reserved.



SECTION 3.10. Reserved.



SECTION 3.11. Agreed Tax Treatment.




(a) 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, local and foreign tax purposes. The provisions of this Indenture shall be
interpreted to further this intention and agreement of the parties.




(b) Any and all payments by or for the account of the Holders, or in respect of the
Securities, shall be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings (to the extent provided
in Section 10.8), and all liabilities with respect thereto, excluding net income
taxes and franchise taxes imposed on (or measured by) net income imposed on any Holder, or
any other recipient of any payment to be made by or on account of any obligation of the
Company hereunder as a result of a present or former connection between such Person and the
jurisdiction imposing such tax levy, impost or withholding or any political subdivision or
taxing authority thereof or therein, other than any such connection arising solely from such
Holder having executed, delivered or performed its obligations or received a payment under,
or enforced, the Securities (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under the
Securities being hereinafter referred to as “Taxes”). If it is required by law that any
Taxes from or in respect of any sum payable hereunder or under any Security be deducted or
withheld, (i) the sum payable by the Company shall be increased as may be necessary so that
after the Company and such Holder, as the case may be, have made all required deductions and
withholdings (including deductions and withholdings applicable to additional sums payable
under this Section 3.11) such Holder receives an amount equal to the sum it would
have received had no such deductions or withholdings been made, (ii) the Company shall make
all such deductions or withholdings, and (iii) the Company shall pay the full amount
deducted or withheld to the relevant taxation authority or other authority in accordance
with applicable law.




(c) In addition, the Company shall pay to the relevant taxing authority in accordance
with applicable law, and indemnify and hold the Holders harmless from, any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that arise from any
payment made hereunder or under the Securities or from the execution, delivery or
registration of, performance under, or otherwise with respect to, this Indenture or the
Securities (hereinafter referred to as “Other Taxes”).


 


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(d) The Company shall indemnify each Holder for and hold each Holder harmless against
the full amount of Taxes and Other Taxes, and for the full amount of Taxes and Other Taxes
of any kind imposed by any jurisdiction on amounts payable
under this Section 3.11, imposed on or paid by any such Holder and any
liability (including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within thirty (30) days from
the date any such Holder makes written demand therefor.




(e) Within thirty (30) days after the adate of any payment of Taxes, the Company shall
furnish to any such Holder the original or a certified copy of a receipt evidencing such
payment.




(f) Each Holder shall, upon the written request of the Company, deliver to the Company
its Internal Revenue Service Forms W-8 and/or W-9, as applicable, to the extent available.




SECTION 3.12. CUSIP Numbers.



The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of redemption and other similar or related
materials as a convenience to Holders; provided, that any such notice or other materials may state
that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or other materials and that reliance may be
placed only on the other identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.



ARTICLE IV




Satisfaction and Discharge





SECTION 4.1. Satisfaction and Discharge of Indenture.



This Indenture shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for and as otherwise provided in this Section 4.1) and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when




(a) either




(i) all Securities theretofore authenticated and delivered (other than (A)
Securities that have been mutilated, destroyed, lost or stolen and that have been
replaced or paid as provided in Section 3.6 and (B) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust as provided in Section 10.2) have been delivered to the Trustee for
cancellation; or


 


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(ii) all such Securities not theretofore delivered to the Trustee for
cancellation




(A) have become due and payable, or




(B) will become due and payable at their Stated Maturity within one
year of the date of deposit, or




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




and the Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for such purpose (x) an amount in
the currency or currencies in which the Securities are payable, (y) Government Obligations
which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of any payment, money
in an amount or (z) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation, for principal
and any premium and interest (including any Additional Interest) to the date of such deposit
(in the case of Securities that have become due and payable) or to the Stated Maturity (or
any date of principal repayment upon early maturity) or Redemption Date, as the case may be;




(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and




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



Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.6, the obligations of the Company to any Authenticating Agent
under Section 6.11 and, if money shall have been deposited with the Trustee pursuant to
subclause (a)(ii) of this Section 4.1, the obligations of the Trustee under Section
4.2 and Section 10.2(e) shall survive.




SECTION 4.2. Application of Trust Money.



Subject to the provisions of Section 10.2(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.


 


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ARTICLE V




Remedies





SECTION 5.1. Events of Default.



“Event of Default” means, wherever used herein with respect to the Securities, any one of the
following events (whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental body):




(a) default in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance of such
default for a period of thirty (30) days; provided, however, that during the Modification
Period, such thirty (30) day period shall be reduced to three (3) Business Days;




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




(c) Except as otherwise set forth in this Section 5.1, default in the
performance, or breach, of any covenant or warranty of the Company in this Indenture or the
Exchange Agreement and continuance of such default or breach for a period of thirty (30)
days after there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least twenty five percent
(25%) in aggregate principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder;




(d) the entry by a court having jurisdiction in the premises of a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed and in effect
for a period of sixty (60) consecutive days;




(e) the institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy or insolvency
proceedings against it, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay its debts generally
as they become due and its willingness to be adjudicated a bankrupt or insolvent, or the
taking of corporate action by the Company in furtherance of any such action;


 


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(f) default in the performance or breach of any covenant or warranty of the Company set
forth in Section 10.5 (Pledge of Certain Collateral) or Section 10.6
(Distributions) and the continuance of such default for a period of three (3) Business Days;
or




(g) default or breach of any of the terms, provisions or covenants set forth in the
Pledge, Security Agreement and Account Control Agreement or the Pledge and Security
Agreement and the continuance of such default for a period of three (3) Business Days.




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), and upon any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the Securities shall become immediately
due and payable.




(b) At any time after such a declaration of acceleration with respect to Securities has
been made and before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article V, the Holders of a majority in
aggregate principal amount of the Outstanding Securities, by written notice to the Trustee,
may rescind and annul such declaration and its consequences if:




(i) the Company has paid or deposited with the Trustee a sum sufficient to pay:




(A) all overdue installments of interest on all Securities,




(B) any accrued Additional Interest on all Securities,




(C) the principal of and any premium on any Securities that have become
due otherwise than by such declaration of acceleration and interest
(including any Additional Interest) thereon at the rate borne by the
Securities, and




(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee
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.


 


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SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.




(a) The Company covenants that if:




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




(ii) default is made in the payment of the principal of and any premium on any
Security at the Maturity thereof,




the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest (including any Additional Interest) and, in addition
thereto, all amounts owing the Trustee under Section 6.6.




(b) If the Company fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial proceeding for
the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the Securities, wherever
situated.




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




SECTION 5.4. Trustee May File Proofs of Claim.



In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or similar judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized
hereunder in order to have claims of the Holders and the Trustee allowed in any such proceeding.
In particular, the Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to first pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
owing the Trustee, any predecessor Trustee and other Persons under Section 6.6.


 


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SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities.



All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, subject
to Article XII and after provision for the payment of all the amounts owing the Trustee,
any predecessor Trustee and other Persons under Section 6.6, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been recovered.




SECTION 5.6. Application of Money Collected.



Any money or property collected or to be applied by the Trustee with respect to the Securities
pursuant to this Article V shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money or property on account of
principal or any premium or interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:



FIRST: To the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under Section 6.6;



SECOND: To the payment of all Senior Debt of the Company if and to the extent required by
Article XII;



THIRD: Subject to Article XII, to the payment of the amounts then due and unpaid upon
the Securities for principal and any premium and interest (including any Additional Interest) in
respect of which or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on the Securities for
principal and any premium and interest (including any Additional Interest), respectively; and



FOURTH: The balance, if any, to the Person or Persons entitled thereto.



SECTION 5.7. Limitation on Suits.



Subject to Section 5.8, no Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the appointment of a
custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:




(a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities;


 


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(b) the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;




(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;




(d) the Trustee after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding for sixty (60) days; and




(e) no direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate principal amount
of the Outstanding Securities;



it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all such
Holders.



SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium, if any, and
Interest.



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 5.9. Restoration of Rights and Remedies.



If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or such Holder then and in every such case the Company,
the Trustee and 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 and such Holder shall continue as though no such proceeding had been
instituted.




SECTION 5.10. Rights and Remedies Cumulative.



Except as otherwise provided in Section 3.6(f), no right or remedy herein conferred
upon or reserved to the Trustee or the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.


 


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SECTION 5.11. Delay or Omission Not Waiver.



No delay or omission of the Trustee 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 5.12. 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:




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




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




(c) subject to the provisions of Section 6.2, the Trustee shall have the right
to decline to follow such direction if a Responsible Officer or Officers of the Trustee
shall, in good faith, reasonably determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or would involve the Trustee in
personal liability.




SECTION 5.13. Waiver of Past Defaults.




(a) The Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities 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.


 


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SECTION 5.14. Undertaking for Costs.



All parties to this Indenture agree, and each Holder of any Security by his or her acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than ten percent (10%) in aggregate principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or any premium on the Security after the Stated Maturity or any interest (including
any Additional Interest) on any Security after it is due and payable.




SECTION 5.15. Waiver of Usury, Stay or Extension Laws.



The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



ARTICLE VI




The Trustee





SECTION 6.1. Corporate Trustee Required.



There shall at all times be a Trustee hereunder with respect to the Securities. The Trustee
shall be a corporation or national banking association organized and doing business under the laws
of the United States or of any state thereof, authorized to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, subject to supervision or examination by
Federal or state authority and having an office within the United States. If such entity publishes
reports of condition at least annually, pursuant to law or to the requirements of such supervising
or examining authority, then, for the purposes of this Section 6.1, the combined capital
and surplus of such entity shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 6.1, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article VI.


 


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SECTION 6.2. Certain Duties and Responsibilities.




Except during the continuance of an Event of Default:




(i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and




(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; provided, that in the case of any
such certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they substantially conform on their face to the
requirements of this Indenture.




(b) If an Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall, prior to the receipt of directions, if any, from the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities, 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.


 


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(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 relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee under this Indenture; and




(iii) the Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company and
money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law.




SECTION 6.3. Notice of Defaults.



Within ninety (90) days after the occurrence of any default actually known to the Trustee, the
Trustee shall give the Holders notice of such default unless such default shall have been cured or
waived; provided, that except in the case of a default in the payment of the principal of or any
premium or interest on any Securities, the Trustee shall be fully protected in withholding the
notice if and so long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines that withholding the
notice is in the interest of Holders of Securities; and provided, further, that in the case of any
default of the character specified in Section 5.1(c), no such notice to Holders shall be
given until at least thirty (30) days after the occurrence thereof. For the purpose of this
Section 6.3, the term “default” means any event which is, or after notice or lapse of time
or both would become, an Event of Default.




SECTION 6.4. Certain Rights of Trustee.




Subject to the provisions of Section 6.2:




(a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;




(b) if (i) in performing its duties under this Indenture the Trustee is required to
decide between alternative courses of action, (ii) in construing any of the provisions of
this Indenture the Trustee finds ambiguous or inconsistent with any other provisions
contained herein or (iii) the Trustee is unsure of the application of any provision of this
Indenture, then, except as to any matter as to which the Holders are entitled to decide
under the terms of this Indenture, the Trustee shall deliver a notice to the Company
requesting the Company’s written instruction as to the course of action to be taken and the
Trustee shall take such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company; provided, that
if the Trustee does not receive such instructions from the Company within ten Business
Days after it has delivered such notice or such reasonably shorter period of time set forth
in such notice the Trustee may, but shall be under no duty to, take such action, or refrain
from taking such action, as the Trustee shall deem advisable and in the best interests of
the Holders, in which event the Trustee shall have no liability except for its own
negligence, bad faith or willful misconduct;


 


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(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 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;




(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 Trustee (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;


 


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(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,
Calculation 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, Calculation Agent, or Securities Registrar.




SECTION 6.5. May Hold Securities.



The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Securities Registrar or such other agent.




SECTION 6.6. Compensation; Reimbursement; Indemnity.




(a) The Company agrees:




(i) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder in such amounts as the Company and the Trustee
shall agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust);


 


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(ii) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, bad faith or willful
misconduct; and




(iii) to the fullest extent permitted by applicable law, to indemnify the
Trustee and its Affiliates, and their officers, directors, shareholders, agents,
representatives and employees for, and to hold them harmless against, any loss,
damage, liability, tax (other than income, franchise or other taxes imposed on
amounts paid pursuant to (i) or (ii) hereof), penalty, expense or claim of any kind
or nature whatsoever incurred without negligence, bad faith or willful misconduct on
its part arising out of or in connection with the acceptance or administration of
this trust or the performance of the Trustee’s duties hereunder, including the costs
and expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.




(b) To secure the Company’s payment obligations in this Section 6.6, the
Company hereby grants and pledges to the Trustee and the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee, other than money
or property held in trust to pay principal and interest on particular Securities. Such lien
shall survive the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.




(c) The obligations of the Company under this Section 6.6 shall survive the
satisfaction and discharge of this Indenture and the earlier resignation or removal of the
Trustee.




(d) In no event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited to, lost
profits, even if the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.




(e) In no event shall the Trustee be liable for any failure or delay in the performance
of its obligations hereunder because of circumstances beyond its control, including, but not
limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot,
embargo, government action, including any laws, ordinances, regulations, governmental action
or the like which delay, restrict or prohibit the providing of the services contemplated by
this Indenture.




SECTION 6.7. Resignation and Removal; Appointment of Successor.




(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article VI shall become effective until the acceptance of appointment by
the successor Trustee under Section 6.8.


 


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(b) The Trustee may resign at any time after providing thirty (30) days’ written notice
thereof to the Company and the Holders.




(c) The Trustee may be removed by the Act of the Holders of at least a majority in
aggregate of principal amount of the Outstanding Securities, delivered to the Trustee and
the Company; provided, that prior to an Event of Default, the written consent of the Company
(not to be unreasonably withheld) shall be required for the removal of the Trustee, which
consent or objection shall be provided within three (3) Business Days and if not so given in
writing, be deemed granted.




(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, the Holders 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 provided, that
prior to an Event of Default, the written consent of the Company (not to be unreasonably
withheld) shall be required for the removal of the Trustee, which consent or objection shall
be provided within three (3) Business Days and if not so given in writing, be deemed
granted. If no successor Trustee shall have been so appointed by 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.




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.


 


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(c) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this Article
VI.




SECTION 6.9. Merger, Conversion, Consolidation or Succession to Business.



Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the parties hereto,
provided, that such Person shall be otherwise qualified and eligible under this Article VI.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation or as otherwise provided above in this
Section 6.9 to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated, and in case any Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of any predecessor
Trustee or in the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the Securities or in this
Indenture that the certificate of the Trustee shall have.




SECTION 6.10. Not Responsible for Recitals or Issuance of Securities.



The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.




SECTION 6.11. Appointment of Authenticating Agent.




(a) The Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a corporation or national
banking association 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.


 


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(b) Any Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of an Authenticating Agent shall
be the successor Authenticating Agent hereunder, provided such Person shall be otherwise
eligible under this Section 6.11, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.




(c) An Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating Agent and to
the Company. Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.11, the Trustee may appoint a successor Authenticating
Agent eligible under the provisions of this Section 6.11, which shall be acceptable
to the Company, and shall give notice of such appointment to all Holders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent.




(d) The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.11 in such amounts as the Company
and the Authenticating Agent shall agree from time to time.




(e) If an appointment of an Authenticating Agent is made pursuant to this Section
6.11, the Securities may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following form:




This is one of the Securities referred to in the within mentioned Indenture.



 


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	Dated:	 THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION,

not in its individual capacity, but solely as Trustee

 	 
	 	By:  	 	 
	 	 	Authenticating Agent 	 


	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Authorized Signatory 	 



 


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ARTICLE VII




Holder’s Lists and Reports by Company





SECTION 7.1. Securities Registrar to Furnish Trustee Names and Addresses of Holders.




The Securities Registrar 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 Securities Registrar 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 Securities
Registrar and has not otherwise been received by the Trustee in its capacity as Securities
Registrar.




SECTION 7.2. Preservation of Information, Communications to Holders.




(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Securities Registrar. The Trustee may destroy any list furnished
to it as provided in Section 7.1 upon receipt of a new list so furnished.




(b) The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided in the Trust Indenture Act.




(c) Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.




SECTION 7.3. Reports by Company.




(a) The Company shall furnish to the Holders and to prospective purchasers of
Securities, upon their request, the information required to be furnished pursuant to Rule
144A(d)(4) under the Securities Act. The delivery requirement set forth in the preceding
sentence may be satisfied by compliance with Section 7.3(b) hereof.


 


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(b) The Company shall furnish to each of (i) the Trustee, (ii) the Holders and to
subsequent holders of Securities, (iii) Taberna Capital Management, LLC, 450 Park Avenue,
New York, New York 10022, Attn: Raphael Licht (or such other address as designated by
Taberna Capital Management, LLC) and (iv) any beneficial owner of the Securities reasonably
identified to the Company (which identification may be made either by such beneficial owner
or by Taberna Capital Management, LLC), a duly completed and executed certificate
substantially and substantively in the form attached hereto as Exhibit A, including
the financial statements referenced in such Exhibit, which certificate and financial
statements shall be so furnished by the Company not later than forty-five (45) days after
the end of each of the first three fiscal quarters of each fiscal year of the Company and
not later than ninety (90) days after the end of each fiscal year of the Company, to the
extent such statements are not available or have not been filed by the Company on the
Commission’s Electronic Data Gathering, Analysis and Retrieval system (or any successor to
such electronic filing system, “EDGAR”) within the required time period; if the Company is
not a company reporting with the Securities and Exchange Commission (the “Commission”), the
financial statements referenced in said Exhibit shall be delivered to the Trustee and the
Holders as provided above. If such statements are available via EDGAR the Company shall not
be required to provide either the certificate or the financial statements.




(c) If the Company does not intend 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 EDGAR system, the Company shall notify the
Trustee in the manner prescribed herein and shall deliver the certificates and financial
statements for each such annual and quarterly filing period as provided in subsection (b)
above. The Trustee is hereby authorized and directed to access the EDGAR system for
purposes of retrieving the financial information so filed. The Trustee may register with
the Company on the Company’s website to receive the information so filed but shall not be
required to do so. Taberna Capital Management, LLC is likewise authorized to register with
the Company on the Company’s website to receive the information so filed but shall not be
required to do so. 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.


 


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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.


 


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(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 Company Order or Company
Request, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following
purposes:




(a) to evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the Securities; or




(b) to evidence and provide for the acceptance of appointment hereunder by a successor
trustee; or




(c) to cure any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend any other
provisions with respect to matters or questions arising under this Indenture, which shall
not be inconsistent with the other provisions of this Indenture, provided, that such action
pursuant to this clause (b) shall not adversely affect in any material respect the interests
of any Holders; or




(d) to comply with the rules and regulations of any securities exchange or interdealer
quotation system on which any of the Securities may be listed, traded or quoted; or


 


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(e) to add to the covenants, restrictions or obligations of the Company or to add to
the Events of Default, provided, that such action pursuant to this clause (e) shall not
adversely affect in any material respect the interests of any Holders or




(f) to modify, eliminate or add to any provisions of the Indenture or the Securities to
such extent as shall be necessary to ensure that the Securities are treated as indebtedness
of the Company for United States Federal income tax purposes, provided, that such action
pursuant to this clause (f) shall not adversely affect in any material respect the interests
of any Holders.




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 Company Order or
Company Request, and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security,




(i) change the Stated Maturity of the principal or any premium of any Security
or change the date of payment of any installment of interest (including any
Additional Interest) on any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption thereof or
change the place of payment where, or the coin or currency in which, any Security or
interest thereon is payable, or restrict or impair the right to institute suit for
the enforcement of any such payment on or after such date, or




(ii) reduce the percentage in aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of compliance
with any provision of this Indenture or of defaults hereunder and their consequences
provided for in this Indenture, or




(iii) modify any of the provisions of this Section 9.2, Section
5.13 or Section 10.7, except to increase any percentage in aggregate
principal amount of the Outstanding Securities, the consent of whose Holders is
required for any reason, or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Security;




(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.


 


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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 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 Company to the Holders at the expense of the
Company.




SECTION 9.4. Effect of Supplemental Indentures.



Upon the execution of any supplemental indenture under this Article IX, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities 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.


 


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(b) The Company will cause each Paying Agent for the Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 10.2, that such Paying
Agent will (i) comply with the provisions of this Indenture and the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any default by the
Company (or any other obligor upon the Securities) in the making of any payment in respect
of the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent for payment in respect of the Securities.




(c) The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.




(d) Any money deposited with the Trustee or any Paying Agent for the payment of the
principal of and any premium or interest (including any Additional Interest) on any Security
and remaining unclaimed for two years after such principal and any premium or interest has
become due and payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than thirty (30) days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.




SECTION 10.3. Statement as to Compliance.



The Company shall deliver to the Trustee and to Taberna Capital Management, LLC, within one
hundred and twenty (120) 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.


 


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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 Holders at any time. If the Calculation Agent is unable or unwilling to
act as such or is removed by the Holders, the Holders will promptly appoint as a replacement
Calculation Agent the London office of a leading bank which is engaged in transactions in
Eurodollar deposits in the international Eurodollar market and which does not control or is
not controlled by or under common control with the Company or its Affiliates. The
Calculation Agent may not resign its duties without a successor having been duly appointed.




(b) The Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date (as defined in Schedule
A), but in no event later than 11:00 a.m. (London time) on the Business Day immediately
following each LIBOR Determination Date, the Calculation Agent will calculate the interest
rate (the Interest Payment shall be rounded to the nearest cent, with half a cent being
rounded upwards) for the related Interest Payment Date, and will communicate such rate and
amount to the Company, the Trustee, each Paying Agent and the Depositary. The Calculation
Agent will also specify to the Company the quotations upon which the foregoing rates and
amounts are based and, in any event, the Calculation Agent shall notify the Company before
5:00 p.m. (London time) on each LIBOR Determination Date that either: (i) it has
determined or is in the process of determining the foregoing rates and amounts or (ii) it
has not determined and is not in the process of determining the foregoing rates and amounts,
together with its reasons therefor. The Calculation Agent’s determination of the foregoing
rates and amounts for any Interest Payment Date will (in the absence of manifest error) be
final and binding upon all parties. For the sole purpose of calculating the interest rate
for the Securities, “Business Day” shall be defined as any day on which dealings in deposits
in Dollars are transacted in the London interbank market.




SECTION 10.5. Pledge of Certain Collateral.




(a) Pledge of Pledged Collateral. The Company shall deliver to the Trustee the
fully executed (i) Pledge, Security Agreement and Account Control Agreement and (b) Pledge
and Security Agreement. The Pledged Collateral shall be security for all payments due or to
become due with respect to the outstanding Securities. The Company represents and warrants
that the Trustee has, and the Company shall cause and shall take all necessary action to
ensure that the Trustee at all times continues to have, a first priority security interest
in the Pledged Collateral. The Trustee shall incur no liability to any Person as a result
of taking any action with respect to the Pledged Collateral directed by the Holders. Neither
the Company nor the Pledged Entity shall have the right to receive or to sell, release,
dispose of or negotiate the Pledged Collateral during the Modification Period or at any time
during the existence of a default or Event of Default;
provided, however, that, during the Modification Period (so long as no Event of Default
has occurred), the Pledged Entity shall be permitted to participate in the negotiation of
the terms of any modification, restructure or forbearance, or the settlement of any
litigation with respect to the Mezzanine Loan, provided, further, that the Pledged Entity
and the Company shall promptly (i) provide or cause to be provided to the Holders copies of
all notices and requests received or sent by the Company in writing pursuant to the
Participation Agreement or otherwise with respect to the Participation Interest or the
Mezzanine Loan, and (ii) provide or cause to be provided to the Holders copies of all
proposals in writing with respect to amendments, modifications, documents and/or other
agreements relating thereto, as well as regular status updates with respect to any
discussions or negotiations relating thereto.


 


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(b) Deposit of Collateral. During the Modification Period, all cash amounts
received by the Company or the Pledged Entity constituting or with respect to the Pledged
Collateral shall, within two (2) Business Days, be deposited into the Account. In addition,
any Pledged Collateral consisting of property or instruments other than cash, shall be held
by the Company or the Pledged Entity, as applicable, in trust, for the benefit of the
Trustee and the Company shall or shall cause the Pledged Entity to, promptly upon the
request of Trustee or the Holders, execute such documents, instruments and agreements, and
does hereby appoint the Trustee as its and the Pledged Entity’s attorney-in-fact for
purposes of entering into and/or filing any documents, instruments and agreements provided
that such appointment shall not impose upon the Trustee any duty to take any such action for
purposes of perfecting the interest of the Trustee in such Pledged Collateral.




(c) Release of Collateral. Upon the Modification Period Termination Date, so
long as no default or Event of Default then exists, the Company and the Pledged Entity shall
be permitted to request in writing to the Trustee (with a copy to Taberna Capital
Management, LLC) a release of the Pledged Collateral and a release of the Pledge, Security
Agreement and Account Control Agreement and the Pledge and Security Agreement (each such
release, a “Release of Collateral”). Any request for a Release of Collateral shall include
a certification and representation by the Company that no Event of Default exists, or event
that with the passage of time or giving of notice would constitute an Event of Default
exists. The Holders shall, so long as the foregoing conditions are met, direct the Trustee
to effectuate the Release of Collateral under the Pledge, Security Agreement and Account
Control Agreement and the Pledge and Security Agreement.




If this Indenture has been discharged, then the Pledge, Security Agreement and Account
Control Agreement and Pledge and Security Agreement shall terminate and/or be cancelled,
without any further action or direction by the Holders, and the Trustee shall then have no
right to or claim on the Pledged Collateral.


 


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(d) Trustee’s Responsibilities Regarding Pledged Collateral. The Company hereby
acknowledges and agrees for itself and the Pledged Entity that notwithstanding anything to
the contrary contained in this Indenture, the Pledged Collateral is collateral solely for
the payment and performance by the Company to the Holders hereunder and
under the Securities. The Trustee shall, notwithstanding any contrary requirement or
direction arising or given hereunder (including pursuant to any provision of Article XII) or
under any documents executed in connection herewith, follow the written directions (each, a
“Release Notice”) of the Holders with respect to any request for a sale, release or other
disposition of all or any portion of the Pledged Collateral or any proceeds thereof, and the
Trustee shall not have any duty, obligation or right to determine when and if any of the
Pledged Collateral is to be sold or released, or otherwise disposed of or to whom any
proceeds thereof will be distributed, except to the extent set forth in a Release Notice.
In the absence of written direction from the Holders as to the disbursement of any proceeds,
the Trustee shall hold such proceeds as additional collateral as provided herein and shall
await further written instructions from the Holders prior to any release of such proceeds.




(e) Trustee Direction. The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, demand, consent, authorization, waiver, order, act, note
or other communication, paper or document (each such item, a “Trustee Direction”) believed
by it to be genuine and to have been signed, presented or delivered (whether by telecopy,
electronic mail, first-class mail, courier service, or otherwise, notwithstanding any
contradictory requirement hereunder) by a party or parties authorized to provide such
Trustee Direction; provided, however, that the Trustee may require such additional evidence,
confirmation or certification from any such party or parties as the Trustee, in its sole
discretion, deems necessary or advisable before acting or refraining from acting upon any
such Trustee Direction.




(f) Pledged Collateral as Independent Obligations. Notwithstanding anything to
the contrary contained herein, the Company covenants and agrees that so long as any of the
Pledged Collateral is held by it or the Pledged Entity pursuant to this Indenture and the
other Indenture Documents, the Trustee shall be permitted as directed by the Holders, if an
Event of Default has occurred and is continuing, to release, disburse, sell, or otherwise
dispose of all or any portion of the Pledged Collateral and disburse the proceeds thereof as
determined by the Holders and any application thereof by the Trustee and the Holders, shall
(i) not be subordinate or subject in right of payment to the prior payment in full of any
Senior Debt, and (ii) be permitted to be made in satisfaction of amounts due or to become
due under this Indenture prior to the payment of any Senior Debt, even if (x) a default has
occurred and is continuing (whether at maturity, by acceleration or otherwise) with respect
to any such Senior Debt, (y) any Proceeding (whether relating to the Company or the Pledged
Entity), has been commenced, or (z) any other condition exists pursuant to Article XII of,
or otherwise in, any of this Indenture, or any other document executed in connection with
any of the foregoing that would, but for this Section 10.5(f), prohibit such sale,
release or other distribution or application. The Company hereby represents and warrants,
for itself and the Pledged Entity, that it has reviewed the terms and provisions of its
Senior Debt (as defined in each of the Indenture) documents, if any, and the Participation
Agreement, and that nothing contained in this Section 10.5 violates, or is prohibited by,
the terms of such Senior Debt documents or the Participation Agreement.


 


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(g) Application of Proceeds of Pledged Collateral. All proceeds from the sale,
release, or other disposition of any Pledged Collateral shall be allocated as determined by
the Holders with respect to amounts due or to become due under the Securities.




(h) Ownership of Pledged Collateral; Other Liens. The Company represents and
warrants that it is the sole legal and beneficial owner of the Pledged Entity and the
Collateral (as defined in the Pledge and Security Agreement) and the Pledged Entity is the
sole legal and beneficial owner of the Participation Interest and the Collateral (as defined
on the Pledge, Security Agreement and Account Control Agreement), free and clear of all
pledges, security interests, liens, charges and encumbrances, except for those created by
this Indenture and the other Indenture Documents. No Person has any legal or equitable
interest in or to any of the Company’s or the Pledged Entity’s right, title and interest to
and under the Pledged Collateral, except for such interests created by this Indenture and
the other Indenture Documents.




(i) No Conflict. The Company represents and warrants that execution, delivery
and performance by Company of the Pledge, Security Agreement and Account Control Agreement
and the Pledge and Security Agreement and by the Pledged Entity of the Pledge, Security
Agreement and Account Control Agreement, will not (i) conflict in any material respect with,
violate or result in a breach of any provision of any agreement or instrument to which the
Company or the Pledged Entity is a party or by which it is bound or to which it is subject,
(ii) require any consent (except such consents as have been obtained), or (iii) constitute a
default under or result in a breach of or under the Participation Agreement, or (iv)
constitute a material default under or result in a material breach of any material
indenture, mortgage or other instrument or agreement to which the Company or the Pledged
Entity is bound or to which any of their respective assets or property may be subject.




(j) Representations, Warranties and Covenants. All of the representations,
warranties and covenants of the Company and the Pledged Entity contained in the Pledge and
Security Agreement and in the Pledge, Security Agreement and Account Control Agreement are
incorporated herein by reference, as if fully set forth herein and made by the Company.


 


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(k) Pledged Entity as Single Purpose Entity. The Company represents, warrants
and covenants that the Pledged Entity (i) is a wholly owned subsidiary of the Company, (ii)
is a duly formed Delaware limited liability company and is validly existing under the laws
of the state of Delaware, (iii) has not owned, does not own, and will not own any asset or
property other than the Pledged Collateral and the Participation Interest other than
Interest paid on the Account, (iv) has not engaged and will not engage in any business other
than the purchase, ownership, sale, transfer or other disposition of the Pledged Collateral
and Participation Interests, (v) has not incurred and will not incur any indebtedness of any
nature, whether secured or unsecured or whether of a recourse or non-recourse nature, (vi)
has not made and will not make any loans or advances to any Person whatsoever (including but
not limited to the Company, any subsidiary or affiliate of the Company or any subsidiary,
affiliate, or any constituent party of any of the foregoing), and has not issued and shall
not issue obligations or securities (other than the
issuance of membership interests to the Company in connection with the Pledged Entity’s
formation), or acquire obligations or securities of any other Person, other than in
connection with the Pledged Collateral; provided, that the Pledged Entity shall be permitted
to dividend or distribute interest received on the Account to the Company, (vii) has done or
caused to be done and will do all things necessary to observe organizational formalities and
preserve its existence, and the Company will not, and will not permit the Pledged Entity, to
amend, modify or otherwise change the certificate of formation and operating agreement of
the Pledged Entity without the prior written consent of the Holders of a majority in
aggregate principal amount of the Securities or in any manner that violates the covenants
set forth in this Indenture, until all Pledged Collateral is released, (viii) has maintained
and will maintain all of its books, records, financial statements and bank accounts separate
from those of the Company and its Affiliates, subsidiaries and constituent parties, (ix) has
been, will be, and at all times has held and will hold itself out to the public as, a legal
entity separate and distinct from any other entity (including the Company, any other
subsidiary, or any Affiliate or constituent party of any of the foregoing) and shall correct
any known misunderstanding regarding its status as a separate entity, and (x) has not
guaranteed or become obligated for, nor will it guarantee or become obligated for, the debts
of any other Person or, except as provided in this Indenture, hold itself out to be
responsible for or have its credit available to satisfy the debts or obligations of any
other Person. The Company represents and warrants that neither the Company nor any
subsidiary, Affiliate or constituent party of any of the foregoing has sought or will seek
or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in
part, of the Pledged Entity.




SECTION 10.6. Additional Covenants.




(a) The Company covenants and agrees with each Holder of Securities that (x) during the
Modification Period and/or (y) if an Event of Default shall have occurred and be continuing
(other than an Event of Default caused solely by the act, or failure to act, of the
Trustee), it shall not (i) 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, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to
declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s
preferred stock or other Equity Interests entitling the holders thereof to a stated rate of
return (for the avoidance of doubt, whether such preferred stock or other Equity Interests
are perpetual or otherwise) other than to 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 (A) repurchases, redemptions or other acquisitions of Equity
Interests of the Company in connection with any employment contract, benefit plan or other
similar arrangement in effect prior to the date hereof with or for the benefit of any one or
more employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase or similar plan with respect to any Equity
Interests or in connection with the issuance of Equity Interest of the Company (or
securities convertible into or exercisable for such Equity Interests) 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
indebtedness for any class or series of the Company’s Equity Interests, (C) the purchase of
fractional interests in Equity Interests of the Company pursuant to the conversion or
exchange provisions of such Equity Interests or the security being converted or exchanged,
(D) any declaration of a dividend in connection with any Rights Plan, the issuance of
rights, Equity Interests or other property under any Rights Plan or the redemption or
repurchase of rights pursuant thereto, (E) any dividend in the form of Equity Interests,
warrants, options or other rights exercisable for Equity Interests (F) dividends or
distributions necessary in order for the Company to maintain its REIT status, provided that
any such declaration or payment during the Modification Period shall be in the form of stock
to the extent permitted by the Code, or (G) any other transaction consented to in writing by
Holders representing a majority in aggregate principal amount of the Securities in their
sole discretion.


 


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(b) The Company is presently qualified as a real estate investment trust (a “REIT”)
under the Internal Revenue Code of 1986 (as the same may be amended from time to time) and
no circumstance or event has occurred that would disqualify the Company as a REIT. Subject
to the Company’s right to merge into an entity that is not a real estate investment trust
pursuant to Section 8.1 hereof, the Company agrees to use its commercially reasonable
efforts to, at all times meet the requirements to qualify as a REIT for as long as the
judgment of the Company’s board of directors is that the Company should maintain its status
as a REIT.




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 treat the Securities as indebtedness, and the amounts, other than payments of
principal, payable in respect of the principal amount of such Securities as interest, for all U.S.
federal income tax purposes. All payments in respect of the Securities will be made free and clear
of U.S. withholding tax to any beneficial owner thereof that has provided an Internal Revenue
Service Form W9 or W 8BEN (or any substitute or successor form) establishing its U.S. or non-U.S.
status for U.S. Federal income tax purposes or any other applicable form establishing a complete
exemption from U.S. withholding tax.


 


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ARTICLE XI




Redemption of Securities





SECTION 11.1. Optional Redemption.



The Company may, at its option, on any Interest Payment Date, on or after April 30, 2011,
redeem the Securities in whole at any time or in part from time to time, at a Redemption Price
equal to one hundred percent (100%) of the applicable Principal Sum 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. Tax Event Redemption.



Prior to April 30, 2011, upon the occurrence and during the continuation of a Tax Event, the
Company may, at its option, redeem the Securities, in whole but not in part, at a Redemption Price
equal to one hundred seven and one half percent (107.5%) of the then applicable Principal Sum
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 “Tax
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 Company Order or Company request. 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.


 


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(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 the Trustee and each Holder of Securities to be redeemed, in whole or in part (unless a
shorter notice period shall be satisfactory to the Trustee).




(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.


 


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(c) Notice of redemption of Securities to be redeemed, in whole or in part, at the
election of the Company shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company and shall be
irrevocable. The notice, if mailed in the manner provided above, shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. In any
case, a failure to give such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.




SECTION 11.6. Deposit of Redemption Price.



Prior to 10:00 a.m., New York City time, on the Redemption Date specified in the notice of
redemption given as provided in Section 11.5, the Company will deposit with the Trustee or
with one or more Paying Agents an amount of money sufficient to pay the Redemption Price of, and
any accrued interest (including any Additional Interest) on, all the Securities (or portions
thereof) that are to be redeemed on that date.




SECTION 11.7. Payment of Securities Called for Redemption.




(a) If any notice of redemption has been given as provided in Section 11.5, the
Securities or portion of Securities with respect to which such notice has been given shall
become due and payable on the date and at the place or places stated in such notice at the
applicable Redemption Price, together with accrued interest (including any Additional
Interest) to the Redemption Date. On presentation and surrender of such Securities at a
Place of Payment specified in such notice, the Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date.




(b) Upon presentation of any Security redeemed in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the
Company, a new Security or Securities, of authorized denominations, in aggregate principal
amount equal to the unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms.




(c) If any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal of and any premium on such Security shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Security.



ARTICLE XII




Subordination of Securities





SECTION 12.1. Securities Subordinate to Senior Debt.



The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article XII, the payment of the principal of and any premium and interest (including any
Additional Interest) on each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior Debt.


 


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SECTION 12.2. No Payment When Senior Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc.




(a) Subject to the terms of Section 10.5, 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, subject to the terms of Section
10.5, 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, subject to the terms of Section 10.5, be paid or
delivered directly to the holders of Senior Debt in accordance with the priorities then
existing among such holders until all Senior Debt (including any interest thereon accruing
after the commencement of any Proceeding) shall have been paid in full.




(c) In the event of any Proceeding, after payment in full of all sums owing with
respect to Senior Debt, the Holders of the Securities, together with the holders of any
obligations of the Company ranking on a parity with the Securities, shall be entitled to be
paid from the remaining assets of the Company the amounts at the time due and owing on
account of unpaid principal of and any premium and interest (including any Additional
Interest) on the Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account of any Equity
Interests or any obligations of the Company ranking junior to the Securities and such other
obligations. If, notwithstanding the foregoing, any payment or distribution of any
character on any security, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Securities, to
the payment of all Senior Debt at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment) shall be received by the Trustee or any Holder in contravention of any of the
terms hereof and before all Senior Debt shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and shall be paid
over or delivered and transferred to, the holders of the Senior Debt at the time outstanding
in accordance with the priorities then existing among such holders for application to the
payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt (including any interest thereon accruing after the commencement of any Proceeding) in
full. In the event of the failure of the Trustee or any Holder to endorse or assign any
such payment, distribution or security, each holder of Senior Debt is hereby irrevocably
authorized to endorse or assign the same.


 


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(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 aggregate of principal
amount of the Senior Debt at the time outstanding, be necessary or appropriate to assure the
effectiveness of the subordination effected by these provisions.




(e) The provisions of this Section 12.2 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any security
interest the creation of which is not prohibited by the provisions of this Indenture.




(f) The securing of any obligations of the Company, otherwise ranking on a parity with
the Securities or ranking junior to the Securities, shall not be deemed to prevent such
obligations from constituting, respectively, obligations ranking on a parity with the
Securities or ranking junior to the Securities.




SECTION 12.3. Payment Permitted If No Default.



Nothing contained in this Article XII or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time, except during the pendency of the conditions
described in paragraph (a) of Section 12.2 or of any Proceeding referred to in Section
12.2, from making payments at any time of principal of and any premium or interest (including
any Additional Interest) on the Securities or (b) the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal of and any premium or
interest (including any Additional Interest) on the Securities or the retention of such payment by
the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in
accordance with Section 12.8) that such payment would have been prohibited by the
provisions of this Article XII, except as provided in Section 12.8.


 


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SECTION 12.4. Subrogation to Rights of Holders of Senior Debt.



Subject to the payment in full of all amounts due or to become due on all Senior Debt, or the
provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article XII (equally and ratably with the holders of all indebtedness of the
Company that by its express terms is subordinated to Senior Debt of the Company to substantially
the same extent as the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders of such Senior
Debt) to the rights of the holders of such Senior Debt to receive payments and distributions of
cash, property and securities applicable to the Senior Debt until the principal of and any premium
and interest (including any Additional Interest) on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any
cash, property or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payments made pursuant to
the provisions of this Article XII to the holders of Senior Debt by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt, and the Holders of the Securities, be deemed to be a payment or distribution by the Company
to or on account of the Senior Debt.




SECTION 12.5. Provisions Solely to Define Relative Rights.



The provisions of this Article XII are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article XII or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the
Holders of the Securities, the obligations of the Company, which are absolute and unconditional, to
pay to the Holders of the Securities the principal of and any premium and interest (including any
Additional Interest) on the Securities as and when the same shall become due and payable in
accordance with their terms, (b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than their rights in relation to the holders of
Senior Debt or (c) prevent the Trustee or the Holder of any Security) from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, including filing and
voting claims in any Proceeding, subject to the rights, if any, under this Article XII of
the holders of Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.




SECTION 12.6. Trustee to Effectuate Subordination.



Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination provided in this Article XII and appoints the Trustee his or
her attorney-in-fact for any and all such purposes.




SECTION 12.7. No Waiver of Subordination Provisions.




(a) No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof that any
such holder may have or be otherwise charged with.


 


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(b) Without in any way limiting the generality of paragraph (a) of this Section
12.7, the holders of Senior Debt may, at any time and from to time, without the consent
of or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to such Holders of the Securities and without impairing or releasing the
subordination provided in this Article XII or the obligations hereunder of such
Holders of the Securities to the holders of Senior Debt, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which Senior Debt is
outstanding, (ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt, (iii) release any Person liable in any manner
for the payment of Senior Debt and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.




SECTION 12.8. Notice to Trustee.




(a) The Company shall give prompt written notice to a Responsible Officer of the
Trustee of any fact known to the Company that would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of this
Article XII or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof from the Company or a
holder of Senior Debt or from any trustee, agent or representative therefor; provided, that
if the Trustee shall not have received the notice provided for in this Section 12.8
at least two Business Days prior to the date upon which by the terms hereof any monies may
become payable for any purpose (including, the payment of the principal of and any premium
on or interest (including any Additional Interest) on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such monies and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.




(b) The Trustee shall be entitled to rely on the delivery to it of a written notice by
a Person representing himself or herself to be a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor) to establish that such notice has been given by
a holder of Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor).
In the event that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article XII, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the 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.


 


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SECTION 12.9. Reliance on Judicial Order or Certificate of Liquidating Agent.



Upon any payment or distribution of assets of the Company referred to in this Article
XII, the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article XII.




SECTION 12.10. Trustee Not Fiduciary for Holders of Senior Debt.



The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or
to any other Person cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article XII or otherwise.




SECTION 12.11. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights.



The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article XII with respect to any Senior Debt that may at any time be held by it, to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.




SECTION 12.12. Article Applicable to Paying Agents



If at any time any Paying Agent other than the Trustee shall have been appointed by the
Trustee 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 Trustee shall not appoint the Company or any affiliate of the Company as 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.



* * * *




 


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



	 	 	 	 	 
	 	NEWCASTLE INVESTMENT CORP.

 	 
	 	By:  	/s/ Brian Sigman
 	 
	 	 	Name:  	Brian Sigman 	 
	 	 	Title:  	Chief Financial Officer 	 



(Signatures continue on the next page)




 


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	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL

ASSOCIATION, as Trustee

 	 
	 	By:  	/s/ Bill Marshall
 	 
	 	 	Name:  	Bill Marshall 	 
	 	 	Title:  	Vice President 	 




 


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Schedule A



DETERMINATION OF LIBOR





With respect to the Securities, the London interbank offered rate (“LIBOR”) shall be
determined by the Calculation Agent in accordance with the following provisions (in each case
rounded to the nearest .000001%):



(1) On the second LIBOR Business Day (as defined below) prior to a Distribution Date after the
expiration of the Fixed Rate Period (each such day, a “LIBOR Determination Date”), LIBOR for any
given security shall for the following interest payment period equal the rate (expressed as a
percentage per annum) for U.S. dollar deposits in Europe, for a three (3) month period, that
appears on Dow Jones Telerate (as defined in the International Swaps and Derivatives Association,
Inc. 2000 Interest Rate and Currency Exchange Definitions) Page 3750, or such other page as may
replace such Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date, as
reported by Bloomberg Financial Market Commodities News or any successor service. If such rate is
superseded on Telerate Page 3750 by a corrected rate before 12:00 noon (London time) on such LIBOR
Determination Date, the corrected rate as so substituted will be LIBOR for such LIBOR Determination
Date.



(2) If on any LIBOR Determination Date such rate does not appear on Dow Jones Telerate Page
3750 or such other page as may replace such Page 3750, the Calculation Agent shall determine the
arithmetic mean of the offered quotations (expressed as a percentage per annum) of the Reference
Banks (as defined below) to leading banks in the London interbank market for U.S. dollar deposits
in Europe, for a three (3) month period, for an amount determined by the Calculation Agent (but not
less than U.S. $1,000,000) by reference to requests for quotations as of 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









 







Officer’s Financial Certificate




The undersigned, the [Chairman/Vice Chairman/Chief Executive Officer/President/ Vice
President/Chief Financial Officer/Treasurer/Assistant Treasurer] of Newcastle Investment Corp., a
Maryland corporation (the “Company”), hereby certifies, pursuant to Section 7.3(b) of the Junior
Subordinated Indenture, dated as of April 30, 2009, among the Company and The Bank of New York
Mellon Trust Company, National Association, as trustee, that:



[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
 _____ except with respect to the balance sheet, which shall be
provided for the two years ended [date], 20
 _____, and all required financial statements for the year
ended [date], 20
 _____.]



[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated financial statements
(including the balance sheet and income statement) of the Company and its consolidated subsidiaries
and all required financial statements 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 (expect 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) [,
except as set forth below:].



[Insert any exceptions by listing, in detail, the nature of the condition or event causing such
noncompliance, the period during which such condition or event has existed and the action(s) the
Company has taken, is taking, or proposes to take with respect to each such condition or event.]



IN WITNESS WHEREOF, the undersigned has executed this Officer’s Financial Certificate as of
this
 _____ day of
 _____, 20
 _____.



	 	 	 	 	 
	 	Newcastle Investment Corp.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 


F-1