Exhibit 10.3


 


EXECUTION COPY


 


JUNIOR SUBORDINATED INDENTURE


 


Between


 


OHI FINANCING, INC.,

as Issuer,


 


and


 


THE BANK OF NEW YORK MELLON,


as Trustee


 


Dated as of August 3,
2009


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
   

  
	
   

  	
   

  
	
  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

  	
  14

  
	
  SECTION 1.7

  	
  Effect of Headings and Table of Contents

  	
  15

  
	
  SECTION 1.8

  	
  Successors and Assigns

  	
  15

  
	
  SECTION 1.9

  	
  Separability Clause

  	
  16

  
	
  SECTION 1.10

  	
  Benefits of Indenture

  	
  16

  
	
  SECTION 1.11

  	
  Governing Law

  	
  16

  
	
  SECTION 1.12

  	
  Submission to Jurisdiction

  	
  16

  
	
  SECTION 1.13

  	
  Non-Business Days

  	
  16

  
	
  SECTION 1.14

  	
  Account

  	
  17

  
	
  SECTION 1.15

  	
  Shareholders Communications Act

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  SECURITY FORMS

  	
   

  
	
   

  	
   

  
	
  SECTION 2.1

  	
  Form of Security

  	
  18

  
	
  SECTION 2.2

  	
  Restricted Legend

  	
  22

  
	
  SECTION 2.3

  	
  Form of Trustee’s Certificate of Authentication

  	
  24

  
	
  SECTION 2.4

  	
  Temporary Securities

  	
  24

  
	
  SECTION 2.5

  	
  Definitive Securities

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
  CUSIP Numbers

  	
  32

  
	
  SECTION 3.10

  	
  Agreed Tax Treatment

  	
  33

  



 


i

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Satisfaction and Discharge of Indenture

  	
  33

  
	
  SECTION 4.2

  	
  Application of Trust Money

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  
	
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Events of Default

  	
  35

  
	
  SECTION 5.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  36

  
	
  SECTION 5.3

  	
  Collection of Indebtedness and Suits for Enforcement by
  Trustee

  	
  37

  
	
  SECTION 5.4

  	
  Trustee May File Proofs of Claim

  	
  37

  
	
  SECTION 5.5

  	
  Trustee May Enforce Claim Without Possession of
  Securities

  	
  38

  
	
  SECTION 5.6

  	
  Application of Money Collected

  	
  38

  
	
  SECTION 5.7

  	
  Limitation on Suits

  	
  38

  
	
  SECTION 5.8

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

  	
  39

  
	
  SECTION 5.9

  	
  Restoration of Rights and Remedies

  	
  39

  
	
  SECTION 5.10

  	
  Rights and Remedies Cumulative

  	
  39

  
	
  SECTION 5.11

  	
  Delay or Omission Not Waiver

  	
  40

  
	
  SECTION 5.12

  	
  Control by Holders

  	
  40

  
	
  SECTION 5.13

  	
  Waiver of Past Defaults

  	
  40

  
	
  SECTION 5.14

  	
  Undertaking for Costs

  	
  41

  
	
  SECTION 5.15

  	
  Waiver of Usury, Stay or Extension Laws

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
  SECTION 6.1

  	
  Corporate Trustee Required

  	
  41

  
	
  SECTION 6.2

  	
  Certain Duties and Responsibilities

  	
  42

  
	
  SECTION 6.3

  	
  Notice of Defaults

  	
  43

  
	
  SECTION 6.4

  	
  Certain Rights of Trustee

  	
  43

  
	
  SECTION 6.5

  	
  May Hold Securities

  	
  45

  
	
  SECTION 6.6

  	
  Compensation; Reimbursement; Indemnity

  	
  46

  
	
  SECTION 6.7

  	
  Resignation and Removal; Appointment of Successor

  	
  47

  
	
  SECTION 6.8

  	
  Acceptance of Appointment by Successor

  	
  47

  
	
  SECTION 6.9

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  48

  
	
  SECTION 6.10

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  48

  
	
  SECTION 6.11

  	
  Appointment of Authenticating Agent

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  HOLDER’S LISTS AND REPORTS BY COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Company to Furnish Trustee Names and Addresses of Holders

  	
  50

  



 


ii

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION 7.2

  	
  Preservation of Information, Communications to Holders

  	
  50

  
	
  SECTION 7.3

  	
  Reports by Company and Guarantor

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  
	
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Company May Consolidate, Etc. Only on Certain Terms

  	
  52

  
	
  SECTION 8.2

  	
  Successor Company Substituted

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  
	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Supplemental Indentures without Consent of Holders

  	
  53

  
	
  SECTION 9.2

  	
  Supplemental Indentures with Consent of Holders

  	
  54

  
	
  SECTION 9.3

  	
  Execution of Supplemental Indentures

  	
  55

  
	
  SECTION 9.4

  	
  Effect of Supplemental Indentures

  	
  55

  
	
  SECTION 9.5

  	
  Reference in Securities to Supplemental Indentures

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  Payment of Principal, Premium, if any, and Interest

  	
  55

  
	
  SECTION 10.2

  	
  Money for Security Payments to be Held in Trust

  	
  56

  
	
  SECTION 10.3

  	
  Statement as to Compliance

  	
  57

  
	
  SECTION 10.4

  	
  Distributions

  	
  57

  
	
  SECTION 10.5

  	
  Change of Control

  	
  57

  
	
  SECTION 10.6

  	
  Provisions Regarding Letters of Credit

  	
  58

  
	
  SECTION 10.7

  	
  Delivery of Information

  	
  60

  
	
  SECTION 10.8

  	
  Inspection of Books and Records

  	
  61

  
	
  SECTION 10.9

  	
  Calculation Agent

  	
  62

  
	
  SECTION 10.10

  	
  Limitation on Debt

  	
  62

  
	
  SECTION 10.11

  	
  Certain Approvals

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
   

  	
   

  
	
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Optional Redemption

  	
  63

  
	
  SECTION 11.2

  	
  Reserved

  	
  63

  
	
  SECTION 11.3

  	
  Election to Redeem; Notice to Trustee

  	
  63

  
	
  SECTION 11.4

  	
  Selection of Securities to be Redeemed

  	
  64

  
	
  SECTION 11.5

  	
  Notice of Redemption

  	
  64

  
	
  SECTION 11.6

  	
  Deposit of Redemption Price

  	
  65

  
	
  SECTION 11.7

  	
  Payment of Securities Called for Redemption

  	
  65

  



 


iii

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE XII

  	
   

  
	
   

  	
   

  
	
  SUBORDINATION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1

  	
  Securities Subordinate to Senior Debt

  	
  66

  
	
  SECTION 12.2

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

  	
  66

  
	
  SECTION 12.3

  	
  Payment Permitted If No Default

  	
  68

  
	
  SECTION 12.4

  	
  Subrogation to Rights of Holders of Senior Debt

  	
  68

  
	
  SECTION 12.5

  	
  Provisions Solely to Define Relative Rights

  	
  68

  
	
  SECTION 12.6

  	
  Trustee to Effectuate Subordination

  	
  69

  
	
  SECTION 12.7

  	
  No Waiver of Subordination Provisions

  	
  69

  
	
  SECTION 12.8

  	
  Notice to Trustee

  	
  69

  
	
  SECTION 12.9

  	
  Reliance on Judicial Order or Certificate of Liquidating
  Agent

  	
  70

  
	
  SECTION 12.10

  	
  Trustee Not Fiduciary for Holders of Senior Debt

  	
  70

  
	
  SECTION 12.11

  	
  Rights of Trustee as Holder of Senior Debt; Preservation of
  Trustee’s Rights

  	
  71

  
	
  SECTION 12.12

  	
  Article Applicable to Paying Agents

  	
  71

  



 


iv

















 


SCHEDULES


 


	
  Schedule A

  	
  -

  	
  Determination of LIBOR

  



 


 


EXHIBITS


 


	
  Exhibit A

  	
  -

  	
  Form of
  Officer’s Financial Certificate

  
	
  Exhibit B

  	
  -

  	
  Form of
  Officer’s Compliance Certificate

  



 


v
















 


JUNIOR SUBORDINATED INDENTURE, dated as of August 3,
2009, between OHI FINANCING, INC., a Delaware corporation (the “Company”), and THE BANK OF NEW YORK MELLON, a New York
banking corporation, as trustee (in such capacity, the “Trustee”).


 


RECITALS
OF THE COMPANY


 


WHEREAS, the Company, the Holders and the Guarantor
(as defined below) have entered into an Exchange Agreement (the “Exchange Agreement”) providing for, among other things, the
exchange by the holders of the undivided preferred beneficial interests in the
assets of Orleans Homebuilders Trust II for the junior subordinated notes (the “Securities”) 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 (the “Securities”)
and to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered;


 


WHEREAS, the Guarantor has entered into the
Guarantee Agreement (as defined herein);


 


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
exchange of the Securities as contemplated by the Exchange Agreement by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:


 


ARTICLE I



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 1.1                  Definitions.


 


For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


(a)           the terms defined in this Article I have the
meanings assigned to them in this Article I;


 


(b)           the words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”;


 


(c)           all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;


 

















 


(d)           unless the context otherwise requires, any reference to an
“Article” or a “Section” refers to an Article or a Section, as the case
may be, of this Indenture;


 


(e)           the words “hereby”, “herein”, “hereof’ and “hereunder” and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;


 


(f)            a reference to the singular includes the plural and vice
versa; and


 


(g)           the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.


 


“Act” when used
with respect to any Holder, has the meaning specified in Section 1.4.


 


“Additional Interest”
means the interest, if any, that shall accrue on any amounts payable on the
Securities, the payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum specified or
determined as specified in such Security, in each case to the extent legally
enforceable.


 


“Affiliate” of
any specified Person means any other Person directly or indirectly Controlling
or Controlled by or under direct or indirect common control with such specified
Person.


 


“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.


 


“Bankruptcy Code”
means Title 11 of the United States Code or any successor statute thereto, in
each case as amended from time to time.


 


“Board of
Directors” means the board of directors of the Company or the
Guarantor, as the case may be, 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 set forth in
Section 10.9.


 


2

















 


“Change of Control”
means the occurrence of one or more of the following events:


 


(i)            any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Guarantor to any
Person or group of related Persons for purposes of Section 13(d) of
the Exchange Act (a “Group”), together with any Affiliates thereof, on an arm’s
length basis with an entity that is not an Affiliate of the Company or the
Guarantor; or


 


(ii)           any Person or Group
(other than Jeffrey P. Orleans and his Affiliates and family or any Affiliate
of the Company or the Guarantor (collectively, a “JPO Party”)) shall acquire
either by purchase from a JPO Party or from the Guarantor through purchase or
merger or otherwise, directly or indirectly, beneficially or of record, shares
representing more than 80% of the issued and outstanding Equity Interests of
the Guarantor and more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Guarantor.


 


“Code” means the Internal Revenue Code of 1986, as amended.


 


“Collateral Manager” has the meaning set forth
in Section 7.3.


 


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


 


“Company” means
the Person named as the “Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such
successor Person.


 


“Company Request”
and “Company Order” mean, respectively, the
written request or order signed in the name of the Company by its Chairman, its
Chief Executive Officer, President or a Vice President, and by its Chief
Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.


 


“Control” means,
when used with respect to any specified Person, 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 101 Barclay St. 4W (ABS), New York, New York
10286, Attn: Corporate Trust - OHI Financing.


 


Credit Facilities” means the Second Amended
and Restated Revolving Credit Loan Agreement, dated as of September 30,
2008, by and among Greenwood Financial, Inc., certain affiliates and the
Guarantor, as borrowers and or guarantors, the lenders party thereto and
Wachovia Bank, National Association, as Administrative Agent for the lenders,
including any notes, guarantees, collateral and security documents, instruments
and agreements executed in 


 


3

















 


connection therewith
(including Hedging Obligations related to the Debt incurred thereunder), as
amended, amended and restated, supplemented, refinanced or otherwise modified
from time to time, including any agreement or instrument extending the maturity
of, refinancing, replacing or otherwise restructuring (including increasing the
amount of borrowings or other Debt outstanding or available to be borrowed
thereunder and/or refinancing such bank facility with secured or unsecured debt
securities and/or other forms of Debt and/or adding, substituting or deleting
parties thereto (including borrowers, obligors, guarantors, lenders, creditors
and/or agents)) all or any portion of the Debt under any such agreements, and
any successor or replacement agreement or agreements (including one or more
indentures) with the same or any other agents, creditor, lender or group of
creditors or lenders.


 


“Debt” means,
with respect to any Person, whether recourse is to all or a portion of the
assets of such Person, whether currently existing or hereafter incurred and
whether or not contingent and without duplication, (i) every obligation of
such Person for money borrowed; (ii) every obligation of such Person
evidenced by bonds, debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of property, assets or
businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers’ acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or other accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such
Person; (vi) all indebtedness of such Person, whether incurred on or prior
to the date of this Indenture or thereafter incurred, for claims in respect of
derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements; (vii) every
obligation of the type referred to in clauses (i) through (vi) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable for,
directly or indirectly, as obligor or otherwise; and (viii) any renewals,
extensions, refundings, amendments or modifications of any obligation of the
type referred to in clauses (i) through (vii).


 


“Default” means
the occurrence or failure to occur of any event which, but for the giving of
notice or passage of time, or both, would be an Event of Default.


 


“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.


 


“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.


 


“Distribution”
has the meaning specified in Section 10.4.


 


“Distribution Requirements”
means that, immediately prior to each and every permitted Distribution of the
Company or the Guarantor, as the case may be, the Guarantor or the Company
shall make a payment to the Trustee in an amount equal to such Distribution
amount 


 


4

















 


multiplied by 0.17857 times
to be applied by the Trustee, on a pro rata basis to the Holders of the
Outstanding Securities, for application to the outstanding principal amount of
the Outstanding Securities.


 


For purposes of this definition, (a) any
payment to the Holders of the Outstanding Securities in satisfaction of the
Distribution Requirements shall be deemed made as of the date the same is
applied to effectuate a redemption of 
all or a portion of the Securities with the proceeds thereof in
accordance with the terms of Article XI, and (b) any Distribution
payable with respect to Equity Interests of the Guarantor may be paid or
distributed by the Guarantor to the holders of such Equity Interests upon
application of the payment described above to such redemption.


 


“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 (a) the common or preferred equity interest in a corporation, (b) the
membership interests in a limited liability company and (c) the
partnership interests (general or limited) in a partnership.


 


“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” has the meaning set forth
in the recitals hereof.


 


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


 


“Financial Statements” mean the reports of
financial condition required to be delivered pursuant to Section 7.3(b).


 


“Fiscal Quarter” means each of the (3) three-month
periods that ends on the last day of the third (3rd), sixth (6th), ninth (9th)
and twelfth (12th) month of a Fiscal Year.


 


“Fiscal Year” means the period of twelve (12) consecutive
calendar months on the basis of which the Company reports its income for GAAP
purposes, which twelve (12) month period currently ends on June 30th.


 


“Fixed Rate Period” means the period during
which the Initial Coupon Rate is in effect and the period when the fixed rate
component of the Term Coupon Rate is in effect.


 


“GAAP” means
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.


 


5

















 


“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.


 


“Guarantee” means the subordinated guarantee of the Securities
by the Guarantor as set forth in the Guarantee Agreement.


 


“Guarantee Agreement” means the Parent Guarantee
Agreement executed and delivered contemporaneously with this Indenture by the
Guarantor and the Trustee, as the same may be amended from time to time in
accordance with its terms.


 


“Guarantor” means Orleans Homebuilders, Inc., a Delaware
corporation, until a successor shall have become such pursuant to the
applicable provisions of this Indenture and thereafter “Guarantor”
shall mean such successor.


 


“Hedging Obligations” of any Person means the
obligations of such Person pursuant to (1) any interest rate swap
agreement, interest rate collar agreement or other similar agreement or
arrangement designed to protect such Person against fluctuations in interest
rates, (2) agreements or arrangements designed to protect such Person
against fluctuations in foreign currency exchange rates in the conduct of its
operations or (3) any forward contract, commodity swap agreement,
commodity option agreement, commodity future agreement or other sililar
agreement or other similar arrangement.


 


“Holder” means a
Person in whose name a Security is registered in the Securities Register.


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
amended or supplemented by one or more amendments or indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.


 


“Initial Coupon Rate” means a fixed rate of one
percent (1.00%) per annum.


 


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


 


6

















 


“Interest Period”
means the period commencing on an Interest Payment Date and continuing through
and including the day prior to the next succeeding Interest Payment Date; provided that the first Interest Period shall be a period
commencing on and including August 3, 2009 and ending on and including October 29,
2009.


 


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


 


“JPO Party” has the meaning set forth in the definition of
Change of Control.


 


“Last Reported Fiscal Quarter” means, on any date, the
later of (i) the Fiscal Quarter most recently concluded that ended at
least fifty (50) days before such date or (ii) the most recent Fiscal
Quarter with respect to which the Company has delivered to the Trustee the
certificate required by Section 7.3(b).


 


“LIBOR” has the meaning specified in Schedule A.


 


“LIBOR
Business Day” has the meaning specified in Schedule A.


 


“LIBOR
Determination Date” has the meaning specified in Schedule A.


 


“Maturity,” when
used with respect to any Security, means the date on which the principal of
such Security or any installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.


 


“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 of Directors, a Vice
Chairman of the Board of Directors, 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 each of the
Company and the Guarantor 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 the Guarantor.


 


“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 Securities” means the trust preferred
securities in the amount of $30,000,000 and the related notes evidencing
indebtedness, outstanding as of the issue date of the Securities, under the
Junior Subordinated Indenture between the Company, as issuer, the Guarantor, as
guarantor, and the trustee named therein, dated as of September 20, 2005,
and any notes evidencing the exchange of such Other Securities for subordinated
debt securities of the Company


 


7

















 


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


 


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


 


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


 


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


 


provided that in
determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or
such other obligor shall be disregarded and deemed not to be Outstanding unless
the Company shall hold all Outstanding Securities, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded.  Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.


 


“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.


 


“Person” means a
legal person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, company, limited liability company,
trust, unincorporated association, or government, or any agency or political
subdivision thereof, or any other entity of whatever nature.


 


“Place of Payment”
means, with respect to the Securities, the Corporate Trust Office of the
Trustee.


 


“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security.  For the purposes of
this definition, any security authenticated and delivered under Section 3.6
in lieu 


 


8

















 


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 Hurdle Requirement” means, as of the applicable
date, the redemption, whether optional or mandatory, or prepayment of
Securities, from the Original Issue Date to such date, in cash in an aggregate
principal amount, if calculated on or before December 31, 2012, of at
least $17,580,000 or, if calculated after December 31, 2012, $21,975,000.


 


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


 


“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 Securities to be redeemed, in whole or in
part, the redemption price at which such Securities are to be redeemed as
provided in this Indenture.


 


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


 


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


 


“Securities” or
“Security” means any debt securities or
debt security, as the case may be, authenticated and delivered under this
Indenture.


 


“Securities Act”
means the Securities Act of 1933 or any successor statute thereto, in each case
as amended from time to time.


 


“Securities Register”
and “Securities Registrar” have the
respective meanings specified in Section 3.5.


 


“Senior Debt”
means the principal of and any premium and interest on (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not such claim for
post-petition interest is allowed in such proceeding) all Debt of the Company
and the Guarantor, 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 pursuant to an instrument that
ranks pari passu with or junior in right of payment to this Indenture.


 


9

















 


“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 January 30, 2036.


 


“Subsidiary” of
a Person means (a) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person and/or by one or more of its
Subsidiaries or (b) any partnership, limited liability company,
association, joint venture or similar business organization more than 50% of
the ownership interests having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person and/or by one or
more of its Subsidiaries.  Unless
otherwise expressly provided, all references herein to a “Subsidiary” of the
Company or the Guarantor shall mean any direct or indirect Subsidiary of the
Company or the Guarantor that is Controlled by the Company or the Guarantor,
respectively.


 


“Term Coupon Rate” means, for any Interest
Period commencing (a) on or after July 30, 2014 and ending on or
before January 29, 2016, a rate equal to 8.61% per annum and (b) on
or after January 30, 2016, a variable rate equal to LIBOR plus 3.60% per
annum.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended and as in effect on the date
as of this Indenture.


 


“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.


 


“Wachovia Event of Default”  means an Event of Default, as defined in any of the Credit
Facilities, unless the Agent (named in the relevant Credit Facility) has
delivered written notice to the Holders that (a) such Event of Default has
been waived by the Lenders (named in the relevant Credit Facility) or no longer
exists, which notice the Agent shall deliver (if appropriate) promptly
following written request by Master Borrower (named in the relevant Credit
Facility) or (b) the Credit Facilities under which such Event of Default
has occurred have been terminated and all Debt outstanding under such Credit
Facilities has been paid.


 


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.


 


10




















 


(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 and the Guarantor stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, 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 


 


11





















 


the actual execution and/or delivery thereof,
such substitute document or instrument shall be deemed to have been executed
and/or delivered as of the date or dates required with respect to the document
or instrument for which it is substituted. 
Without limiting the generality of the foregoing, any Securities issued
under the authority of such defective document or instrument shall nevertheless
be the valid obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding Securities.


 


SECTION 1.4                  Acts of Holders.


 


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


 


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


 


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


 


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


 


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


 


(f)            Except as set forth in paragraph (g) of this Section 1.4,
the Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities 


 


12





















 


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.


 


13





















 


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, the Guarantor 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 of the Securities shall be sufficient for every purpose
hereunder if in writing and mailed, first class, postage prepaid, to the
Company, addressed to it at 3333 Street Road, Suite 101, Bensalem, PA
19020, Attention: Chief Financial Officer 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 email 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 Agreement sent by unsecured email, 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
email 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.


 


SECTION 1.6                  Notice to Holders; Waiver.


 


(a)           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 


 


14





















 


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.


 


(b)                           The Trustee may, but is not required to,
rely upon and comply with instructions and directions sent by email 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 Agreement sent by unsecured email,
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 email 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.


 


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


 


15

















 


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 permitted successors and assigns, the holders of Senior Debt, and the
Holders of the Securities any benefit or any legal or equitable right, remedy
or claim under this Indenture.


 


SECTION 1.11                Governing Law.


 


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


 


SECTION 1.12                Submission to Jurisdiction.


 


ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY
PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS INDENTURE MAY BE
BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE
COUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN).  BY EXECUTION AND DELIVERY OF THIS INDENTURE,
EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF
APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH
THIS INDENTURE.


 


SECTION 1.13                Non-Business Days.


 


If any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Securities)
payment of interest, premium, if any, or principal or other amounts in respect
of such Security shall not be made on such date, but shall be made on the next
succeeding Business Day (and no interest shall accrue in respect of the amounts
whose payment is so delayed for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, until such next
succeeding Business Day) except that, if such Business Day falls in the next
succeeding calendar year, such payment shall be made on the immediately
preceding 


 


16

















 


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                Account.


 


In connection with any funds received by the Trustee
hereunder and any payments made on account of any Holder of Securities, the
Trustee shall, on or prior to the date of this Indenture, establish a
segregated non-interest bearing trust account in the name of the Trustee, which
shall be designated as the Payment Account. 
The Trustee may establish any number of subaccounts as it deems
necessary or advisable for purposes of performing its obligations under this
Indenture.  The only permitted
withdrawals from or application of funds on deposit in, or otherwise to the
credit of, the Payment Account shall be to pay amounts due and payable to the
Trustee pursuant to Section 6.6 hereof and to the Holders on account of
the Securities in accordance with their terms and the provisions of this
Indenture.  Amounts in the Payment
Account shall be held uninvested.


 


SECTION 1.15                Shareholders 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 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.


 


(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.


 


17





















 


ARTICLE II



SECURITY FORMS


 


SECTION 2.1                  Form of Security.


 


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


 


THIS SECURITY IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. 
THE HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE
DISCOUNT, ISSUE DATE AND YIELD TO MATURITY WITH RESPECT TO THE SECURITY BY
SUBMITTING A WRITTEN REQUEST TO THE COMPANY AT THE FOLLOWING ADDRESS: 3333
STREET ROAD, SUITE 101, BENSALEM, PA, ATTENTION: CHIEF FINANCIAL OFFICER.


 


OHI FINANCING, INC.


 


Junior Subordinated Note due 2036


 


	
  No.        

  	
  $                

  



 


OHI Financing, Inc., a Delaware corporation
(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 [                       ]($[                       ])  on January 30, 2036. The Company further promises to
pay interest on said principal sum from August 3, 2009, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly in arrears on July 30, October 30, January 30 and
April 30 of each year, commencing October 30, 2009, 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 the Initial Coupon Rate for each Interest Payment Date through
and including July 30, 2014 and at the Term Coupon Rate for each Interest
Payment Date thereafter through the Stated Maturity until the principal hereof
is paid or duly provided for or made available for payment; provided that any
overdue principal, premium, if any, and any overdue installment of interest
shall bear Additional Interest at a fixed rate equal to the Initial Coupon Rate
or Term Coupon Rate, as the case may be, in effect during the period in which
such amount accrues interest (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 for any full interest period be computed on the basis of a
360-day year of twelve 30-day months and the 


 


18

















 


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


 


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


 


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.


 


The Securities are guaranteed by the Guarantor
pursuant to the Guarantee.


 


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.


 


19

















 


[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 August 3, 2009
(the “Indenture”), between the Company and The
Bank of New York Mellon, 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 Guarantor, 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, at any time or from time to time,
at its option, upon not less than fifteen (15) 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) 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 the redemption prices set
forth in the Indenture, including in connection with the making of
Distributions on the Equity Interests of the Company or the Guarantor and upon
a Change of Control of the Company or the Guarantor.


 


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.


 


20

















 


As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is restricted to
transfers in accordance with the Act and other applicable Federal or state
securities laws, and is registrable in the Securities Register, upon surrender
of this Security for registration of transfer at the office or agency of the
Company maintained for such purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Securities Registrar and duly executed by, the Holder hereof or such Holder’s
attorney duly authorized in writing, and thereupon one or more new Securities,
of like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.


 


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


 


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


 


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


 


The Company and, by its acceptance of this Security
or a beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree 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
[            ].


 


	
   

  	
  OHI
  FINANCING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


21
















 


SECTION 2.2                  Restricted Legend.


 


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


 


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


 


UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.  OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH SECURITIES,
AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.  EACH PURCHASER OF ANY
SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.


 


THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51)
OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) AND IN COMPLIANCE WITH THE 


 


22

















 


SECURITIES
ACT, (III) 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, OR (IV) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3) or (7) OF RULE 501, 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, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY
SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE.


 


THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.  TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
ATTEMPTED TRANSFER OF SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN
EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER.  TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY INTEREST
THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN SUCH SECURITIES.


 


THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED (“ERISA “), OR SECTION 4975
OF THE INTERNAL REVENUE 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 


 


23

















 


ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.”


 


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


 


SECTION 2.3                  Form of Trustee’s Certificate of Authentication.


 


The Trustee’s certificate of authentication shall be
in substantially the following form:


 


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


 


Dated: 
[                                    ]


 


	
   

  	
  The
  Bank of New York Mellon,

  
	
   

  	
  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.


 


24





















 


SECTION 2.5                  Definitive Securities.


 


The Securities issued on the Original Issue Date
shall be in definitive form.  The
definitive Securities shall be printed, lithographed or engraved, or produced
by any combination of these methods, if required by any securities exchange on
which the Securities may be listed, on a steel engraved border or steel
engraved borders or may be produced in any other manner permitted by the rules of
any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.


 


ARTICLE III


 


THE SECURITIES


 


SECTION 3.1                  Payment of Principal and Interest.


 


(a)           The unpaid principal amount of the Securities shall bear
interest at the Initial Coupon Rate for each Interest Payment Date through and
including July 30, 2014 and at the Term Coupon Rate for each Interest
Payment Date thereafter through and including the Stated Maturity, 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.  Any overdue principal, premium, if
any, and any overdue installment of interest shall bear Additional Interest at
the Initial Coupon Rate or the Term Coupon Rate in effect during the period in
which such amount accrues interest, 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 


 


25





















 


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


 


(ii)     The Company may make
payment of any Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange or automated quotation system
on which the Securities may be listed, traded or quoted and, upon such notice
as may be required by such exchange or automated quotation system (or by the
Trustee if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
payment shall be deemed practicable by the Trustee.


 


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


 


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


 


26





















 


(f)            The parties hereto acknowledge and agree that the Holders
of the Securities have certain rights to direct the Company to modify the (a) Interest
Payment Dates, and (b) corresponding Stated Maturity of the
Securities.  In the event any such
modifications are made to the Securities, appropriate changes to the form of
Security set forth in Article II hereof shall be made prior to the
issuance and authentication of new or replacement Securities.  Any such modification of the (a) Interest
Payment Dates and (b) corresponding Stated Maturity with respect to any
Securities shall not require or be subject to the consent of the Trustee.


 


(g)           Subject to the foregoing provisions of this Section 3.1,
each Security delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Security.


 


SECTION 3.2                  Denominations.


 


The Securities shall be in registered form without
coupons and shall be issuable in minimum denominations of $100,000 and any
integral multiple of $1,000 in excess thereof.


 


SECTION 3.3                  Execution, Authentication, Delivery and Dating.


 


(a)           At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities in an aggregate
principal amount (including all then Outstanding Securities) not in excess of
Ninety Three Million Seven Hundred and Fifty Thousand Dollars ($93,750,000)
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, its Vice Chairman, its Chief Executive Officer, its President,
its Chief Financial Officer, or one of its Vice Presidents.  The signature of any of these officers on the
Securities 


 


27





















 


may be manual or facsimile.  Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.


 


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


 


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


 


SECTION 3.4                  Global Securities.


 


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


 


(b)           Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for registered Securities,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (1) 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 


 


28





















 


of such Securities and the registration in
the Securities Register of such Securities in the names of the Holders of the
beneficial interests therein, the Trustees shall recognize such holders of
beneficial interests as Holders.


 


(c)           If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either (i) such
Global Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to (x) the
portion thereof to be so exchanged or canceled, or (y) the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its
records.  Upon any such surrender or
adjustment of a Global Security by the Depositary, accompanied by registration
instructions, the Company shall execute and the Trustee shall authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) in accordance with the instructions of the Depositary.  The Trustee shall not be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.


 


(d)           Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a
nominee thereof.


 


(e)           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.


 


(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 


 


29





















 


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, upon
surrender for registration of transfer of any Security at the offices or
agencies of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations of like tenor and aggregate principal amount.


 


(c)           At the option of the Holder, Securities may be exchanged
for other Securities of any authorized denominations, of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency.  Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.


 


(d)           All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.


 


(e)           Every Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Securities Registrar, duly executed by the Holder thereof
or such Holder’s attorney duly authorized in writing.


 


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


 


30





















 


(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.


 


(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.


 


31




















 


(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 Guarantor,
the Trustee and any agent of the Company, the Guarantor 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 Guarantor, the Trustee nor any agent of the Company, the Guarantor
or the Trustee shall be affected by notice to the contrary.


 


SECTION 3.8                  Cancellation.


 


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


 


SECTION 3.9                  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 


 


32

















 


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.


 


SECTION 3.10                Agreed Tax Treatment.


 


Each Security issued hereunder shall provide that the
Company and, by its acceptance or acquisition of a Security or a beneficial
interest therein, the Holder of, and any Person that acquires a direct or
indirect beneficial interest in, such Security, intend and agree to treat such
Security as indebtedness of the Company for U.S. Federal, state and local tax
purposes and to treat the Preferred Securities (including but not limited to
all payments and proceeds with respect to the Preferred Securities) as an
undivided beneficial ownership interest in the Securities (and any other Trust
property) (and payments and proceeds therefrom, respectively) for United States
Federal, state and local tax purposes. 
The provisions of this Indenture shall be interpreted to further this
intention and agreement of the parties.


 


ARTICLE IV


 


SATISFACTION AND DISCHARGE


 


SECTION 4.1                  Satisfaction
and Discharge of Indenture.


 


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


 


(a)           either


 


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


 


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


 


(A)          have
become due and payable, or


 


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


 


33





















 


(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, or


 


(D)          are
to be called for redemption pursuant to the 
terms of Section 10.5,


 


and the Company, in the case
of subclause (ii)(A), (B), (C) or (D) 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 or the Guarantor; 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(d) shall survive.


 


SECTION 4.2                  Application of
Trust Money.


 


Subject to the provisions of Section 10.2(d),
all money deposited with the Trustee pursuant to Section 4.1 shall
be held in trust and applied by the Trustee, in accordance with the provisions
of the Securities and this Indenture, to the payment in accordance with Section 3.1,
either directly or through any Paying Agent as the Trustee may determine, to
the Persons entitled thereto, of the principal and any premium and interest
(including any Additional Interest) for the payment of which such money or
obligations have been deposited with or received by the Trustee.  Moneys held by the Trustee under this Section 4.2
shall not be subject to the claims of holders of Senior Debt under Article XII.


 


34

















 


ARTICLE V


 


REMEDIES


 


SECTION 5.1                  Events of
Default.


 


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


 


(a)           default in the payment of any
interest upon any Security, including any Additional Interest in respect
thereof, when it becomes due and payable, and continuance of such default for a
period of thirty (30) days; or


 


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


 


(c)           default in the performance, or
breach, of any covenant or warranty of the Company or the Guarantor in this
Indenture, the Guarantee or the Exchange Agreement (except that (x) a
breach of a warranty in the Exchange Agreement shall constitute an Event of
Default hereunder only if such warranty shall prove to be untrue in any
material respect, and (y) a breach of a covenant contained in Section 6(e) or
Article 7 of the Exchange Agreement shall constitute an Event of Default
hereunder only if such breach is a material breach of such covenant) and
continuance of such default or breach for a period of thirty (30) days after
there has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by
the Holders of at least twenty five percent (25%) in aggregate principal amount
of the Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or


 


(d)           the entry by a court having
jurisdiction in the premises of a decree or order adjudging the Company or the
Guarantor a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or the Guarantor 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 the Guarantor or of any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of sixty (60) consecutive days; or


 


(e)           the institution by the Company or the
Guarantor of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by the Company or the Guarantor to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the 


 


35

















 


Company or the Guarantor 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 the Guarantor or of any substantial part of
its property, or the making by the Company or the Guarantor of an assignment
for the benefit of creditors, or the admission by the Company or the Guarantor
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 or the Guarantor in furtherance of any such
action.


 


SECTION 5.2                  Acceleration
of Maturity; Rescission and Annulment.


 


(a)           If an Event of Default occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than twenty five percent (25%) in aggregate principal amount of the Outstanding
Securities may declare the principal amount of all the Securities to be due and
payable immediately, by a  notice in
writing to the Company (and to the Trustee if given by Holders); 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 Company and the Trustee, may rescind and annul such declaration and its
consequences if:


 


(i)            the
Company or the Guarantor 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;


 


36





















 


No such rescission shall
affect any subsequent default or impair any right consequent thereon.


 


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


 


(a)           The Company covenants that if:


 


(i)            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 the
Guarantor (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 


 


37

















 


payments directly to the
Holders, to first pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts owing the Trustee, any predecessor Trustee
and other Persons under Section 6.6.


 


SECTION 5.5                  Trustee May Enforce
Claim Without Possession of Securities.


 


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


 


SECTION 5.6                  Application
of Money Collected.


 


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


 


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


 


SECOND:  Subject to Section 10.6(f), to
the payment of all Senior Debt if and to the extent required by Article XII
or the subordination provisions of the Guarantee;


 


THIRD:  Subject to Article XII and the
subordination provisions of the Guarantee, to the payment of the amounts then
due and unpaid (at maturity, by redemption or otherwise) 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:


 


38

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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 Guarantor, 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



 


39

















 


right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


SECTION 5.11                Delay or
Omission Not Waiver.


 


No delay or omission of the
Trustee 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 or the Guarantor 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


 


40





















 


(ii)           in
respect of a covenant or provision hereof that under Article IX
cannot be modified or amended without the consent of each Holder of any
Outstanding Security.


 


(b)           Any such waiver shall be deemed to be
on behalf of the Holders of all the Outstanding Securities.


 


(c)           Upon any such waiver, such Event of
Default shall cease to exist and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon.


 


SECTION 5.14                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.


 


Each of the Company and the
Guarantor 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 each of the Company and the Guarantor (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 


 


41

















 


powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or state authority and having an office within the United
States.  If such entity publishes reports
of condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then, for the purposes of this Section 6.1,
the combined capital and surplus of such entity shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.1, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article VI.


 


SECTION 6.2                  Certain
Duties and Responsibilities.


 


(a)           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.


 


(e)           Notwithstanding Section 1.10, the Trustee
shall not, and shall not be deemed to, owe any fiduciary duty to the holders of
any of the Securities and shall not be liable to any such holder (other than
for the willful misconduct or negligence of the Trustee) if the Trustee in good
faith (i) pays over or distributes to a registered Holder of the
Securities, cash, property or securities to which such holders of such
Securities shall be entitled or (ii) takes any action or omits to take any
action at the request of the Holder of such Securities.


 


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 the period of time specified in such Sections has
elapsed after the occurrence thereof.


 


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, 


 


43

















 


consent,
order, bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;


 


(b)           if (i) in performing its duties under this Indenture
the Trustee is required to decide between alternative courses of action, (ii) in
construing any of the provisions of this Indenture the Trustee finds ambiguous
or inconsistent with any other provisions contained herein or (iii) the
Trustee is unsure of the application of any provision of this Indenture, then,
except as to any matter as to which the Holders are entitled to decide under
the terms of this Indenture, the Trustee shall deliver a notice to the Company
requesting the Company’s written instruction as to the course of action to be
taken and the Trustee shall take such action, or refrain from taking such
action, as the Trustee shall be instructed in writing to take, or to refrain
from taking, by the Company; provided that
if the Trustee does not receive such instructions from the Company within ten (10) Business
Days after it has delivered such notice or such reasonably shorter period of
time set forth in such notice the Trustee may, but shall be under no duty to,
take such action, or refrain from taking such action, as the Trustee shall deem
advisable and in the best interests of the Holders, in which event the Trustee
shall have no liability except for its own negligence, bad faith or willful
misconduct;


 


(c)           any request or direction of the Company shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board 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
and the Guarantor, 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 


 


44

















 


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;


 


(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 or the Guarantor;


 


(l)            the Trustee shall not be charged with knowledge of any
Event of Default unless either (1) a Responsible Officer of the Trustee
shall have actual knowledge or (ii) the Trustee shall have received
written notice thereof from the Company, the Guarantor or a Holder; and


 


(m)          in the event that the Trustee is also acting as Paying
Agent, Authenticating Agent or Securities Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI
shall also be afforded such Paying Agent, Authenticating Agent, or Securities
Registrar.


 


SECTION 6.5                  May Hold Securities.


 


The Trustee, any Authenticating Agent, any Paying
Agent, any Securities Registrar or any other agent of the Company, in its individual
or any other capacity, may become 


 


45

















 


the owner or pledgee of
Securities and may otherwise deal with the Company and the Guarantor 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 in
writing from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);


 


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


 


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


 


46





















 


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


 


SECTION 6.7                  Resignation and Removal; Appointment of Successor.


 


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


 


(b)           The Trustee may resign at any time by giving written
notice thereof to the Company.


 


(c)           The Trustee may be removed by Act of the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities
delivered to the Trustee and to the Company.


 


(d)           If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any reason, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, shall promptly appoint a successor Trustee, and such
successor Trustee and the retiring Trustee shall comply with the applicable
requirements of Section 6.8. 
If no successor Trustee shall have been so appointed by the 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.


 


47





















 


(b)           Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts referred
to in paragraph (a) of this Section 6.8.


 


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


 


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


 


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


 


SECTION 6.10                Not Responsible for Recitals or Issuance of Securities.


 


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


 


SECTION 6.11                Appointment of Authenticating Agent.


 


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


 


48





















 


$50,000,000 and subject to supervision or
examination by Federal or state authority. 
If such Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.11 the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.11, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section 6.11.


 


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


 


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


 


(d)           The Company or the Guarantor shall 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 in writing from time to time.


 


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


 


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


 


Dated:


 


	
   

  	
  [                                                                            ]

  
	
   

  	
  not
  in its individual capacity, but solely as

  
	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authenticating Agent

  



 


49

















 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


ARTICLE VII


 


HOLDER’S LISTS AND REPORTS
BY COMPANY


 


SECTION 7.1                  Company to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish or cause to be furnished to
the Trustee:


 


(a)           semiannually, on or before June 30 and December 31
of each year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of a date not more than fifteen (15)
days prior to the delivery thereof, and


 


(b)           at such other times as the Trustee may request in writing,
within thirty (30) days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than fifteen (15) days
prior to the time such list is furnished,


 


in each case to the extent
such information is in the possession or control of the Company and has not
otherwise been received by the Trustee in its capacity as Securities Registrar.


 


SECTION 7.2                  Preservation of Information, Communications to Holders.


 


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


 


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


 


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


 


SECTION 7.3                  Reports by Company and Guarantor.


 


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


 


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(b)           The Company shall furnish, and shall cause the Guarantor
to furnish, to each of (i) the Trustee, (ii) the Holders, and to
subsequent holders of Securities, (iii) the Collateral Manager  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 the Collateral Manager), a duly
completed and executed certificate of the Company and the Guarantor
substantially and substantively in the form attached hereto as Exhibit A,
including the consolidated financial statements referenced in such Exhibit,
which certificate and financial statements shall be so furnished not later than
forty-five (45) days after the end of each of the first three fiscal quarters
of each fiscal year of the Guarantor and not later than ninety (90) days after
the end of each fiscal year of the Guarantor. 
The annual full fiscal year financial statements required to be
delivered in accordance with this Section 7.3(b) shall be
audited by a reputable independent certified public accounting firm.


 


(c)           If the Company and/or the Guarantor intends to file its
annual and quarterly information with the Securities and Exchange Commission
(the “Commission”) in electronic form pursuant
to Regulation S-T of the Commission using the Commission’s Electronic Data
Gathering, Analysis and Retrieval (“EDGAR”) system,
the Company and/or the Guarantor shall notify the Trustee in the manner
prescribed herein of each such annual and quarterly filing.  The Trustee is hereby authorized and directed
to access the EDGAR system for purposes of retrieving the financial information
so filed.  Compliance with the foregoing
shall constitute delivery by the Company and the Guarantor 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 and/or the Guarantor makes with the Commission,
regardless of whether such filings are periodic, supplemental or
otherwise.  Delivery of reports,
information and documents to the Trustee pursuant to this Section 7.3(c) shall
be solely for purposes of compliance with this Section 7.3(c) and,
if applicable, with section 314(a) of the Trust Indenture Act.  The Trustee’s receipt of such reports,
information and documents shall not constitute notice to it of the content
thereof or any matter determinable from the content thereof, including the
Company’s and/or the Guarantor’s compliance with any of its covenants
hereunder, as to which the Trustee is entitled to rely upon Officers’
Certificates.


 


(d)           For purposes of this Section 7.3, “Collateral Manager” means, initially, Taberna Capital
Management, LLC, having an address at 450 Park Avenue, New York, New York
10022, Attn: Rafael Licht (or such other address and notice party so designated
by Taberna Capital Management, LLC, and, after written notice delivered to the
Trustee and the Company by Holders owning a majority in aggregate principal
amount of Outstanding Securities, such successor representative of the Holders
so designated in such notice; provided that there shall only be one such
Holder’s representative at any one time).


 


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ARTICLE VIII


 


CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE


 


SECTION 8.1                  Company May Consolidate, 
Etc. Only on Certain Terms.


 


(a)           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:


 


(i)            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, 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 all other obligations and every
covenant, term and provision of this Indenture on the part of the Company to be
performed or observed;


 


(ii)           immediately after
giving effect to such transaction, no Event of Default, and no event that,
after notice or lapse of time, would constitute an Event of Default, shall have
happened and be continuing;


 


(iii)          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;
and


 


(iv)          prior written
approval of such transaction by the Holders of a majority in aggregate
principal amount of Outstanding Securities;


 


provided, however, that, in lieu
of the foregoing clauses (i), (ii), (iii) and (iv), the Company may
consolidate with or merge with or into any other Person, or convey, transfer or
lease its properties and assets substantially as an entirety to any Person if
such consolidation, merger, conveyance, transfer or lease constitutes a Change
of Control and, in connection with such transaction, the Company complies with Section 10.5
and delivers to the Trustee an Officers’ Certificate attesting to such
compliance, as to which the Trustee may rely as conclusive evidence that such
transaction complies with this Section 8.1.


 


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(b)           The provisions of Section 8.1 of the Guarantee are
incorporated herein by reference.


 


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(i)-(iv) (disregarding the proviso)
and the execution and delivery to the Trustee of the supplemental indenture
described in Section 8.1 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 shall
be liable for every obligation of and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance or transfer, following the execution and delivery of such
supplemental indenture, the Company shall be discharged from all obligations
and covenants under the Indenture and the Securities.


 


(b)           Such successor Person may cause to be executed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities that such successor Person thereafter shall cause to be executed
and delivered to the Trustee on its behalf. 
All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture.


 


(c)           In case of any such consolidation, merger, sale,
conveyance or lease, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate to reflect such
occurrence.


 


(d)           The provisions of Section 8.3 of the Guarantee are
incorporated herein by reference.


 


ARTICLE IX


 


SUPPLEMENTAL INDENTURES


 


SECTION 9.1                  Supplemental Indentures without Consent of Holders.


 


Without the consent of any Holders, the Company and
the Guarantor, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the
following purposes:


 


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


 


(b)           to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other provision
herein, or in any of  the Exhibits or
Schedules hereto, 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


 


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


 


(d)           to add to the covenants, restrictions or obligations of
the Company or the Guarantor or to add to the Events of Default; provided that such action pursuant to this clause (d) 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 a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security,


 


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


 


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


 


(iii)          modify any of the
provisions of this Section 9.2 or Section 5.13, 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 


 


54





















 


provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each Security.


 


(b)           It shall not be necessary for any Act of Holders under
this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.


 


SECTION 9.3                  Execution of Supplemental Indentures.


 


In executing or accepting the additional trusts
created by any supplemental indenture permitted by this Article IX
or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected in
conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture, and that all conditions precedent herein provided
for relating to such action have been complied with.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee’s own
rights, duties, indemnities or immunities under this Indenture or
otherwise.  Copies of the final form of
each supplemental indenture shall be delivered by the Trustee at the expense of
the Company to each Holder, and, if the Trustee is the Property Trustee, to
each holder of Preferred Securities, promptly after the execution thereof.


 


SECTION 9.4                  Effect of Supplemental Indentures.


 


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


 


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SECTION 10.2                Money for Security Payments to be Held in Trust.


 


(a)           Whenever the Company shall have one or more Paying Agents,
it will, prior to 10:00 a.m., New York City time, on each due date of the
principal of or any premium or interest (including any Additional Interest) on
any Securities, deposit with such Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided in the Trust Indenture Act and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its failure to so act.


 


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


 


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


 


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


 


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SECTION 10.3                Statement as to Compliance.


 


The Company shall deliver to the Trustee and the
Collateral Manager, within one hundred twenty (120) days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate covering the preceding fiscal year, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.


 


SECTION 10.4                Distributions.


 


(a)           The Company covenants and agrees with each Holder of
Securities that if an Event of Default shall have occurred and be continuing or
at any time prior to July 30, 2014, it shall not (i) declare or pay
any dividends or distributions on, including in the form of warrants, options
or other rights, or redeem, purchase, acquire or make a liquidation payment
(any of the foregoing, a “Distribution”)
with respect to, any of the Company’s Equity Interests, (ii) vote in favor
of or permit or otherwise allow any of the Company’s Subsidiaries to declare or
pay any Distributions (other than to the Company) on any shares of any such
Subsidiary’s preferred stock or other Equity Interests entitling the holders
thereof to a stated rate of return (for the avoidance of doubt, whether such
preferred stock or other Equity Interests are perpetual or otherwise), or (iii) make
any payment of principal of or any interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
in all respects with or junior in interest to the Securities, except (A) with
respect to pari passu debt, payments made on a pari passu basis with payments made with respect to the
Securities and (B) with respect to the Other Securities, payments made on
the Other Securities on a correlative basis.


 


(b)           Notwithstanding the foregoing clause (a), the Company
covenants and agrees with each Holder of Securities that it shall not, at any
time on or before the later of (a) July 30, 2014 and (b) until
satisfaction of the Principal Hurdle Requirement (including the payment of
accrued interest (including Additional Interest) and any other amounts then due
and payable with respect to any Securities redeemed, paid or prepaid), make any
Distribution with respect to any Equity Interests of the Company, except, so
long as no Event of Default shall have occurred and be continuing, for (i) after
satisfaction of the Principal Hurdle Requirement (including the payment of
accrued interest (including Additional Interest) and any other amounts then due
and payable with respect to any Securities redeemed, paid or prepaid),
Distributions as to which the Distribution Requirements have been satisfied, (ii) Distributions
in the form of Equity Interests or warrants, options or other rights to acquire
Equity Interests or (iii) Distributions that occur in connection with
cashless exercises of stock options or effected in accordance with customary
stock option or similar employee benefit plans.


 


SECTION 10.5                Change of Control.


 


In connection with a Change of Control, the Company
may, at its option, elect to redeem the Securities pursuant to Section 11.1(b) and
Section 11.3  in whole but
not in part for an aggregate Redemption Price, in cash, by delivery to the
Trustee by wire transfer of immediately available funds of:


 


57

















 


(a)           the amount necessary to satisfy the Principal Hurdle
Requirements together with accrued interest (including Additional Interest) on
the Securities through and including the Redemption Date; and


 


(b)           in addition to the amount required by clause (a) above,
a redemption amount equal to 0.17857 times the amount payable, paid,
distributable or distributed to or received by, directly or indirectly, the
holders of the Equity Interests of the Company or the Guarantor with respect to
such Change of Control transaction;


 


provided, however, that at the
same time, and as a condition to the redemption of the Securities, (i) the
Trustee shall have received the proceeds from a draw on the Letter of Credit as
described in Section 11 and (ii) paid all other amounts then
due or payable under the Securities and this Indenture.


 


The determination made
pursuant to the preceding clause (b) as to a redemption amount shall be
based upon the value of all cash and non-cash consideration that is available
to the holders of any Equity Interests of the Guarantor, directly or
indirectly, with respect to such Change of Control transaction (as set forth in
a valuation opinion of a nationally recognized accounting firm or investment
bank selected by the Company and, in the event that the valuation is expressed
as a range, the value shall be the midpoint of the range).


 


SECTION 10.6                Provisions Regarding Letters of Credit.


 


(a)           On or prior to the Effective Date, the Company shall
deliver to the Trustee a Letter of Credit in the amount of the Five Million
Dollars ($5,000,000.00) which shall be available to be drawn down at any time
after the issuance thereof and the Trustee shall have the right to draw down
such Letter of Credit as set forth herein. 
For purposes of this Section 10.6, the term “Letter of Credit” means an irrevocable, unconditional,
transferable, clean sight draft letter of credit in favor of the Trustee and
entitling the Trustee to draw thereon as provided in this Section 10.6
in New York, New York (whether in person or by facsimile), issued in U.S.
Dollars by a domestic Eligible Institution or the U.S. agency or branch of a
foreign Eligible Institution.  For
purposes of this Section 10.6, “Eligible Institution”  means a depository institution insured by the
Federal Deposit Insurance Corporation the short term unsecured debt obligations
or commercial paper of which are rated at least “A-1” by Standard &
Poor’s Ratings Group, “P-1” by Moody’s Investors Service, Inc. and “F-1+”
by Fitch IBCA, Inc. in the case of accounts in which funds are held for
thirty (30) days or less (or, in the case of letters of credit or accounts in
which funds are held for more than thirty (30) days, the long term unsecured
debt obligations of which are rated at least “AA” by Fitch IBCA, Inc. and
Standard & Poor’s Ratings Group and “Aa2” by Moody’s Investors Service, Inc.).


 


(b)           In no event shall (i) the Company, the Guarantor or
any Person other than the Trustee be entitled to draw upon any Letter of Credit
delivered pursuant to this Section 10.6, or (ii) any Person
(including, without limitation, any implied or other third-party beneficiary)
other than the Trustee, on behalf of the Holders of the Securities, have any
title, right or interest in any Letter of Credit or any proceeds of a draw upon
any Letter of Credit.


 


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(c)           Under no circumstances shall the Trustee as beneficiary
under any Letter of Credit for the benefit of the Holders of the Securities be
required to transfer any Letter of Credit to a second beneficiary.  In the event that the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities
determine that (i) the bank issuing any Letter of Credit shall cease to be
an Eligible Institution or (ii) the Trustee should no longer hold any
Letter of Credit, either the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities or the Trustee may require that
the existing Letter of Credit be cancelled and that, in the case of clause (i),
simultaneously with and as a condition to such cancellation or return of the
existing Letter of Credit to the Company, one or more new Letters of Credit be
issued as directed by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities by giving to each of the other
parties hereto no less than fifteen (15) days written notice of such
requirement.


 


(d)           Any Letter of Credit delivered under this Indenture shall
be security for all payments due and to become due with respect to the
Securities.  Notwithstanding anything to
the contrary contained in this Indenture or any documents executed in
connection herewith, each Letter of Credit is collateral solely for the benefit
of the Holders of the Securities, and no other Person shall have any right,
title or interest in any Letter of Credit or any proceeds drawn thereon.  The Trustee shall, notwithstanding any
contrary requirement or direction arising or given hereunder (including
pursuant to Article XII) or under any documents executed in connection
herewith, follow the written direction of the Holders of a majority in aggregate
principal amount of the Outstanding Securities as set forth herein with respect
to any draw on any Letter of Credit and application of any proceeds of such
draw and the Trustee shall not have any duty, obligation or right to determine
when and if a draw is to be made on any Letter of Credit or how the proceeds of
any Letter of Credit will be applied. 
Upon notice to Trustee from the Holders of a majority in aggregate
principal amount of the Outstanding Securities, which notice may be given upon (i) the
occurrence of an Event of Default, other than an Event of Default specified in Section 5.1(c) unless
such Event of Default results in a declaration of acceleration pursuant to Section 5(a),
or (ii) in connection with a Change of Control when the Securities are
redeemed at less than their full principal amount, the Trustee shall have the
right to draw on any Letter of Credit as directed by the Holders of a majority
in aggregate principal amount of the Outstanding Securities, and to apply all
or any part thereof to any amounts then due and owing and/or to become due and
owing or to the principal amount with respect to the Securities, as directed
solely by the Holders of a majority in the aggregate principal amount of the
Outstanding Securities; provided that (i) any such direction to the
Trustee shall state a reasonably calculated draw amount such that the Holders
do not receive a payment which, when added together with all payments,
prepayments and redemptions on the Securities (including any payments to be made
in connection with such Change of Control), does not exceed the aggregate
principal amount of the Securities plus all accrued interest thereon (including
Additional Interest) and (b) in the event of such an excess being drawn,
such excess shall be paid to the Company or its successor.  The Trustee shall give the Company written
notice of any such application of funds.


 


(e)           In addition, the Trustee shall, as directed by the Holders
of a majority in aggregate principal amount of the Outstanding Securities, draw
in full any Letter of Credit:  (i) if
the Trustee and the Collateral Manager have received a notice from the issuing
bank or the 


 


59





















 


Company that the applicable Letter of Credit
will not be renewed and a substitute Letter of Credit is not provided at least
fifteen (15) Business Days prior to the date on which the outstanding Letter of
Credit is scheduled to expire; (ii) [omitted]; or (iii) if the
Trustee has received notice from either the issuing bank or the Company that
the bank issuing any Letter of Credit shall cease to be an Eligible Institution
and the Company has not replaced the outstanding Letters of Credit with
substitute Letters of Credit from an Eligible Institution within five (5) Business
Days of notice to the Company thereof. 
The Company agrees that it will promptly notify, in writing, the Trustee
and the holders of a majority in aggregate principal amount of the Securities
of the occurrence of any event set forth in clause (i) or (iii) of the
preceding sentence. The Trustee shall apply all or any part of the proceeds
drawn on any Letter of Credit pursuant to Section 10.6 (b).  Notwithstanding anything to the contrary
contained in the above, the Trustee shall not be liable for any losses sustained
by any Person due to the insolvency of the bank issuing any Letter of Credit.


 


(f)            Notwithstanding anything to the contrary contained
herein, including Article XII, the Company covenants and agrees
that (i) each Letter of Credit shall be the independent obligation of the
Eligible Institution issuing such Letter of Credit and that the Company has no
right, title, or interest in any Letter of Credit whatsoever and (ii) the
Trustee shall have the right to draw upon any Letter of Credit as set forth in
this Section 10.6 and may apply such proceeds to any amounts then
due and owing and/or to become due and owing with respect to the Securities, as
directed by the Holders of a majority in aggregate principal amount of the
Outstanding Securities and any such draw and application by the Trustee and/or
the Holders of the Securities as set forth in this Section 10.6
shall (i) not be subordinate or subject in right of payment to the prior
payment in full of any Senior Debt or any of the Credit Facilities, (ii) be
permitted to be made prior to the payment of any Senior Debt and the Credit
Facilities even if (A) a default has occurred and is continuing (whether
at maturity, by acceleration or otherwise) with respect to any Senior Debt or
the Credit Facilities, (B) any Proceeding has been commenced or (C) any
other condition exists pursuant to Article XII or otherwise in this
Indenture or any other document executed in connection with this Indenture that
would, but for this Section 10.6(f), prohibit such draw or application.


 


(g)           The Company and the Guarantor shall use commercially
reasonable efforts to obtain a Letter of Credit replacing the initial Letter of
Credit which replacement Letter of Credit shall (i) replace the date July 30,
2009 in the third line of the section entitled “Statement” in Attachment A with
the date August 3, 2009 and (ii) not contain the last sentence of the
sixth paragraph of the Letter of Credit. 
The Company and the Guarantor will deliver to Taberna, within two (2) Business
Days of receipt of notice thereof, any and all notices regarding expiration or
non-renewal of any Letter of Credit issued pursuant to this Section 10.6.


 


SECTION 10.7                Delivery of Information.


 


For so long as any of the Securities remain
Outstanding, the Company shall, or shall cause the Guarantor to, deliver
(through access to a shared data base or such other method reasonably
acceptable to the Collateral Manager) to the Collateral Manager all such
financial data and information in the possession of the Company or the Guarantor
as the Collateral Manager may reasonably request from the Company or the
Guarantor; provided, however, that 


 


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the Collateral Manager
agrees to maintain, the confidentiality of, and not to use for any purpose
other than monitoring the business of the Company or the Guarantor and the
Company’s or the Guarantor’s compliance with the terms of this Indenture or the
Guarantee, all information received in connection with the exercise of the
foregoing rights, except to the extent disclosure is required by applicable
law, and except with respect to any information that (a) is or becomes
generally available to the public other than as a result of a disclosure by the
Collateral Manager or its representatives, (b) was within the Collateral
Manager’s possession prior to its being furnished to the Collateral Manager by
or on behalf of the Company or the Guarantor, provided that the source of such
information was not known by the Collateral Manager to be bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, the Company or the Guarantor with respect to such
information or (c) becomes available to the Collateral Manager on a
non-confidential basis from a source other than the Company or the Guarantor or
any of their respective representatives, provided that such source is not known
by the Collateral Manager to be bound by a confidentiality agreement with, or
other contractual, legal or fiduciary obligation of confidentiality to, the
Company or the Guarantor with respect to such information.


 


SECTION 10.8                Inspection of Books and Records.


 


The Company shall, and shall cause the Guarantor to,
permit the Collateral Manager to examine the books and records of account of
the Company or the Guarantor and their respective subsidiaries (and to make
copies thereof and extracts therefrom) and to discuss the affairs, finances and
accounts of such Persons with, and to be advised as to the same by, its
officers, either in person at the Company’s or the Guarantor’s offices or
telephonically, all at such reasonable times and intervals during normal
business hours as the Collateral Manager may reasonably request, at the expense
of the Collateral Manager.  The
Collateral Manager shall use good faith efforts to coordinate such inspections
so as to minimize the interference with and disruption to the Company’s or the
Guarantor’s normal business operations. 
The Collateral Manager agrees to maintain, the confidentiality of, and
not to use for any purpose other than monitoring the business of the Company or
the Guarantor and the Company’s or the Guarantor’s compliance with the terms of
this Indenture or the Guarantee, all information received in connection with
the exercise of the foregoing rights, except to the extent disclosure is
required by applicable law, and except with respect to any information that (a) is
or becomes generally available to the public other than as a result of a
disclosure by the Collateral Manager or its representatives, (b) was
within the Collateral Manager’s possession prior to its being furnished to the
Collateral Manager by or on behalf of the Company or the Guarantor, provided
that the source of such information was not known by the Collateral Manager to
be bound by a confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, the Company or the Guarantor with
respect to such information or (c) becomes available to the Collateral
Manager on a non-confidential basis from a source other than the Company or the
Guarantor or any of their respective representatives, provided that such source
is not known by the Collateral Manager to be bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, the Company or the Guarantor with respect to such
information.


 


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SECTION 10.9                Calculation Agent.


 


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 Trustee shall serve as initial
Calculation Agent for purposes of determining LIBOR for each Interest Payment
Date.  The Calculation Agent may be
removed by the Holders of a majority in principal amount outstanding of the
Notes at any time.  If the Calculation
Agent is unable or unwilling to act as such or is removed by the Holders of a
majority in principal amount outstanding of the Notes, the Holders of a
majority in principal amount outstanding of the Notes 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.


 


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 and the Holdersthe 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 10.10              Limitation on Debt.


 


(a)           Neither the Company nor the Guarantor shall incur any Debt
that is senior in right of payment to the Securities or the Guarantee of the
Guarantor, as the case may be, and subordinated in right of payment to any
other Debt of the Company or such Guarantor, as the case may be.  For purposes of the foregoing, no Debt will
be deemed to be subordinated in right of payment to any other Debt of the
Company or the Guarantor solely by virtue of such Debt being unsecured or by
virtue of the fact that the holders of such Debt have entered into one or more
intercreditor agreements giving one or more of such holders priority over the
other holders in the collateral held by them.


 


(b)           Neither the Company nor the Guarantor nor any of their respective
Subsidiaries may incur any Senior Debt (other than the Credit Facilities) (a) other
than any Senior Debt that is incurred in an arm’s length transaction with a
party that is not a JPO Party 


 


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and on terms which the Company or the
Guarantor, as the case may be, reasonably determines are commercially
reasonable or (b) the proceeds of which are distributed to an entity other
than the Company, the Guarantor or a Subsidiary of either thereof which is subject
to the covenants of this Indenture.


 


SECTION 10.11              Certain Approvals.


 


The Company and/or the
Guarantor shall not, without the express written consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, enter into
an exchange offer, amendment, supplement or similar transaction with respect to
the Other Securities unless the material terms of any such transaction are
substantially similar to and not more favorable than those set forth in this
Indenture.


 


ARTICLE XI


 


REDEMPTION OF SECURITIES


 


SECTION 11.1                Optional Redemption.


 


(a)           The Company may, at its option, redeem the Securities in
whole at any time or in part from time to time, at a Redemption Price equal to
one hundred percent (100%) of the principal amount thereof (or of the redeemed
portion thereof, as applicable), together, in the case of any such redemption,
with accrued and unpaid interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date (the “Optional
Redemption Price”).


 


(b)           The Company may, at its option, redeem the Securities
pursuant to Section 10.5 on the basis set forth in such section,
which shall include accrued and unpaid interest, including any Additional
Interest, through but excluding the date fixed as the Redemption Date.


 


SECTION 11.2                Reserved.


 


SECTION 11.3                Election to Redeem; Notice to Trustee.


 


The election of the Company to redeem any
Securities, in whole or in part, shall be evidenced by or pursuant to a Board
Resolution.  In case of any redemption at
the election of the Company, the Company shall, not less than fifteen (15) 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, 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.


 


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SECTION 11.4                Selection of Securities to be Redeemed.


 


(a)           If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected and redeemed on a pro
rata basis not more than sixty (60) days prior to the Redemption Date by the
Trustee from the Outstanding Securities not previously called for redemption; provided that the unredeemed portion of the principal amount
of any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security.


 


(b)           The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.  For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security that has been or is to be redeemed.


 


(c)           The provisions of paragraphs (a) and (b) of this
Section 11.4 shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in
whole or in part.  In the case of any
such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.


 


SECTION 11.5                Notice of Redemption.


 


(a)           Notice of redemption shall be given not later than the
fifteenth  (15th) day, and not earlier
than the sixtieth (60th) day, prior to the Redemption Date to each Holder of
Securities to be redeemed, in whole or in part.


 


(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 


 


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Additional
Interest) on such Security or such portion, as the case may be, shall cease to
accrue on and after said date; and


 


(v)           the place or places
where such Securities are to be surrendered for payment of the Redemption
Price.


 


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


 


SECTION 11.6                Deposit of Redemption Price.


 


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


 


SECTION 11.7                Payment of Securities Called for Redemption.


 


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


 


(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.


 


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ARTICLE XII


 


SUBORDINATION OF SECURITIES


 


SECTION 12.1                Securities Subordinate to Senior Debt.


 


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


 


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


 


(a)           In the event and during the continuation of any default by
the Company in the payment of any principal of or any premium or interest on
any Senior Debt (following any grace period, if applicable) when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, upon written notice of
such default to the Company by the holders of such Senior Debt or any trustee
therefor, unless and until such default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of or any premium or interest (including any
Additional Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the
Securities.    Notwithstanding anything
to the contrary in this Section 12.2(a), the provisions of this Section 12.2(a) shall
also apply for at least 180 days following receipt of notice by the Holders of
any Wachovia Event of Default, unless and until the Holders have received
written notice as provided in clause (a) or (b) of the definition of
Wachovia Event of Default (contained herein) that the Wachovia Event of Default
has been waived or the applicable Credit Facilities have been terminated and
all Debt outstanding thereunder has been paid. 
For at least 180 days following the receipt of notice by the Holders and
the Trustee of any Wachovia Event of Default, the Holders shall not initiate or
maintain any action to collect on the Securities and shall not accept any
payment of any principal or interest on the Securities (whether from the
Company or the Guarantor) and shall not accept any payment of any principal or
interest on the Securities.  For the
avoidance of doubt, it is understood that any notice of a Wachovia Event of
Default received by the Holders or the Trustee, as the case may be, during any
180-day period referred to in this Section 12.2(a) shall not
trigger a new 180-day period, and the Holders or the Trustee, as the case may
be, shall not be required to refrain from initiating or maintaining any such
action for a period in excess of 180 days in the aggregate for each Event of
Default.


 


(b)           Subject to the provisions of Section 10.6(f),
in the event of a bankruptcy, insolvency or other proceeding described in
clause (d) or (e) of the definition of Event of Default (each such
event, if any, herein sometimes referred to as a “Proceeding”),
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Securities on account thereof.  Subject to the 


 


66





















 


provisions of Section 10.6(f), any
payment or distribution, whether in cash, securities or other property (other
than securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of Senior Debt in
accordance with the priorities then existing among such holders until all
Senior Debt (including any interest thereon accruing after the commencement of
any Proceeding) shall have been paid in full.


 


(c)           Subject to Section 10.6(f), 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.  Subject to Section 10.6(f),
if, notwithstanding the foregoing, any payment or distribution of any character
on any security, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment) shall be received by the Trustee
or any Holder in contravention of any of the terms hereof and before all Senior
Debt shall have been paid in full, such payment or distribution or security
shall be received in trust for the benefit of, and shall be paid over or
delivered and transferred to, the holders of the Senior Debt at the time
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all such Senior Debt (including any interest thereon
accruing after the commencement of any Proceeding) in full.  In the event of the failure of the Trustee or
any Holder to endorse or assign any such payment, distribution or security,
each holder of Senior Debt is hereby irrevocably authorized to endorse or
assign the same.


 


(d)           The Trustee and the Holders, at the expense of the
Company, shall take such reasonable action (including the delivery of this
Indenture to an agent for any holders of Senior Debt or consent to the filing
of a financing statement with respect hereto) as may, in the opinion of counsel
designated by the holders of a majority in aggregate 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.


 


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


 


SECTION 12.3                Payment Permitted If No Default.


 


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


 


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, 


 


68

















 


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, except that with respect to this clause (c), for 180
days following receipt of notice by the Holders (whether such notice is
provided by the Company, the Guarantor or the Trustee) of any Wachovia Event of
Default, neither the Holders nor the Trustee shall initiate or maintain any
action to collect on the Securities (whether from the Company or the
Guarantor).


 


SECTION 12.6                Trustee to Effectuate Subordination.


 


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


 


SECTION 12.7                No Waiver of Subordination Provisions.


 


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


 


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


 


SECTION 12.8                Notice to Trustee.


 


(a)           The Company shall give prompt written notice to a
Responsible Officer of the Trustee and to the Collateral Manager 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 


 


69





















 


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


 


(b)           The Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself or herself to be a
holder of Senior Debt (or a trustee, agent, representative or attorney-in-fact
therefor) to establish that such notice has been given by a holder of Senior
Debt (or a trustee, agent, representative or attorney-in-fact therefor).  In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article XII, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XII, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.


 


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


 


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


 


SECTION 12.10              Trustee Not Fiduciary for Holders of Senior Debt.


 


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


 


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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.


 


(a)           If at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article XII
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article XII
in addition to or in place of the Trustee. 
For the avoidance of doubt, the Company shall not be permitted to
appoint itself or any Affiliate as a Paying Agent hereunder.


 


* * * *


 


This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.


 


* * * *


 


71
















 


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


 


 


	
   

  	
  OHI
  FINANCING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Garry P. Herdler

  
	
   

  	
   

  	
  Name: Garry
  P. Herdler

  
	
   

  	
   

  	
  Title:   EVP&CFO

  



 


S-1

















 


	
   

  	
  THE BANK OF NEW YORK MELLON, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jared Fischer

  
	
   

  	
   

  	
  Name: Jared
  Fischer

  
	
   

  	
   

  	
  Title:   Assistant
  Treasurer

  



 


S-2
















 


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,
as obtained by the Calculation Agent from Bloomberg Financial Markets
Commodities News, for three-month
Eurodollar deposits that appears on Dow Jones Telerate Page 3750 (as
defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions), or such other page as
may replace such Page 3750, as of 11:00 a.m. (London time) on such
LIBOR Determination Date.


 


(2)           If,
on any LIBOR Determination Date, such rate does not appear on Dow 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 of the Reference Banks (as defined below) to leading banks in the
London interbank market for three-month
Eurodollar deposits in an amount determined by the Calculation Agent by
reference to requests for quotations as of approximately 11:00 a.m.
(London time) on the LIBOR Determination Date made by the Calculation Agent to
the Reference Banks.  If, on any LIBOR
Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal such arithmetic mean of such quotations.  If, on any LIBOR Determination Date, only one
or none of the Reference Banks provide such quotations, LIBOR shall be deemed
to be the arithmetic mean of the offered quotations that leading banks in the
City of New York selected by the Calculation Agent are quoting on the relevant
LIBOR Determination Date for three-month
Eurodollar deposits in an amount determined by the Calculation Agent by
reference to the principal London offices of leading banks in the London
interbank market; provided that,
if the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR shall be
LIBOR as determined on the previous LIBOR Determination Date.


 


(3)           As
used herein: “Reference Banks”
means four major banks in the London interbank market selected by the
Calculation Agent; and “LIBOR Business Day”
means a day on which commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in London.


 


A-1

















 


EXHIBIT
A


 


FORM OF OFFICER’S FINANCIAL CERTIFICATE


 


The undersigned, the [Chairman/Vice Chairman/Chief
Executive Officer/President/Executive Vice President/Vice President/Chief
Financial Officer/Treasurer/Assistant Treasurer], hereby certifies, pursuant to
Section 7.3(b) of the Junior Subordinated Indenture (the
“Indenture”), dated as of July      , 2009, among
OHI Financing, Inc. (the “Company”)   and The Bank of New
York Mellon, 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 Guarantor and its consolidated subsidiaries for the
years ended [date], 20    ]


 


[FOR FISCAL
QUARTER END: Attached hereto are the [un]audited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Guarantor and its consolidated subsidiaries 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 Guarantor and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the date, and
for the [      quarter interim] [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 Guarantor 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 Guarantor has taken, is taking, or proposes to take with
respect to each such condition or event.]


 


A-2

















 


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


 


	
   

  	
  ORLEANS
  HOMEBUILDERS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OHI
  FINANCING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-3

















 


EXHIBIT B


 


FORM OF OFFICER’S COMPLIANCE CERTIFICATE


 


The undersigned, the [Chairman/Vice Chairman/Chief
Executive Officer/President/Executive Vice President/Vice President/Chief
Financial Officer/Treasurer/Assistant Treasurer], hereby certifies, pursuant to
Section 10.3 of the Junior Subordinated Indenture (the
“Indenture”), dated as of July      , 2009, among
OHI Financing, Inc. (the “Company”),
Orleans Homebuilders, Inc. (the “Guarantor”)  and The Bank of New York Mellon, as trustee,
that,


 


I have reviewed the terms of
the Indenture and I have made, or have caused to be made under my supervision,
a detailed review of the covenants of the Company set forth therein during the
accounting period ended as of 
[          ] (the “Accounting Period”), which Accounting Period is covered by
the financial statements attached hereto. The examinations described in the
preceding sentence did not disclose, and I have no knowledge of, the existence
of any condition or event which constitutes a Default or an Event of Default
(each as defined in the Indenture) during or at the end of the Accounting
Period or as of the date of this certificate [, 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.]


 


A-4

















 


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


 


	
   

  	
  OHI
  FINANCING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-5