Exhibit 4.6
REGISTERED PRINCIPAL AMOUNT No.:
$
CUSIP No.: _________
Xxxxx Equity, Inc.
[Designation of Subordinated Security]
Xxxxx Equity, Inc., a Florida corporation (hereinafter called the
"Corporation," which term shall include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, upon presentation, the principal sum
of__________________________________ DOLLARS on _____________, and to pay
interest on the outstanding principal amount thereon from _____________, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on _______ and _________ in each year,
commencing _______________, at the rate of __% per annum, until the entire
principal amount hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Subordinated Security (or one or more Predecessor Subordinated Securities) is
registered at the close of business on the Regular Record Date for such interest
which shall be the ________ or ________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. 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 Subordinated Security (or one or more Predecessor Subordinated
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 Subordinated Securities of this series not
more than 15 days and not less than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Subordinated 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 the principal of, Make-Whole Amount,
if any, on, and interest on this Subordinated Security will be made at the
office or agency of the Corporation maintained for that purpose in the City of
_______, State of _______, or elsewhere as provided in the Indenture, 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; provided, however, that at
the option of the Corporation payment of interest may be made by (i) check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register kept for the Subordinated Securities pursuant to
Section 305 of the Indenture (the "Security Register") or (ii) transfer to an
account of the Person entitled thereto located inside the United States.
This Subordinated Security is one of a duly authorized issue of
securities of the Corporation (herein called the "Subordinated Securities"),
issued and to be issued in one or more series under an Indenture, dated as of
_________, 200_ (herein called the "Indenture"), between the Corporation and
____________ (herein called the "Trustee," which term includes any successor
trustee under the Indenture with respect to the Subordinated Securities), 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 Corporation, the Trustee and the Holders of the
Subordinated Securities and of the terms upon which the
Subordinated Securities are, and are to be, authenticated and delivered. This
Subordinated Security is one of the series designated as the "[designation of
Subordinated Securities]," limited in aggregate principal amount to $__________.
The Subordinated Securities may be redeemed at any time at the option
of the Corporation, in whole or in part, upon notice of not more than 60 nor
less than 30 days prior to the Redemption Date, at a redemption price equal to
the sum of (i) the principal amount of the Subordinated Securities being
redeemed plus accrued interest thereon to the Redemption Date and (ii) the
Make-Whole Amount, if any, with respect to such Subordinated Securities.
The following definitions apply with respect to any redemption of the
Subordinated Securities of this series at the option of the Corporation:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Subordinated Security, the excess, if
any, of (i) the aggregate present value as of the date of such
redemption or accelerated payment of each dollar of principal being
redeemed or paid and the amount of interest (exclusive of any interest
accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semiannual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the
respective dates on which such principal and interest would have been
payable if such redemption or accelerated payment had not been made,
over (ii) the aggregate principal amount of the Subordinated Securities
being redeemed or paid.
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week"
and "Last Week" published in the Statistical Release under the caption
"Treasury Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the remaining life to maturity, as of the
payment date of the principal being redeemed or paid. If no maturity
exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be
calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding in each of such relevant
periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior
to the date of determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded
United States government securities adjusted to constant maturities or,
if such statistical release is not published at the time of any
determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Corporation.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Corporation on this Subordinated Security and (b)
certain restrictive
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covenants and the related defaults and Events of Default applicable to the
Corporation, in each case, upon compliance by the Corporation with certain
conditions set forth in the Indenture, which provisions apply to this
Subordinated Security.
If an Event of Default with respect to the Subordinated Securities
shall occur and be continuing, the principal of, and the Make-Whole Amount, if
any, on, the Subordinated Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Subordinated Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or
trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Subordinated Securities, the Holders of not less than 25% in
principal amount of the Subordinated Securities at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority in
principal amount of the Subordinated Securities at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Subordinated Security for the enforcement of any payment of principal
hereof or any interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Subordinated Securities under
the Indenture at any time by the Corporation and the Trustee with the consent of
the Holders of not less than a majority in principal amount of the Outstanding
Subordinated Securities. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Subordinated
Securities at the time Outstanding, on behalf of the Holders of all Subordinated
Securities, to waive compliance by the Corporation 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 Subordinated
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Subordinated Security and of any Subordinated 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
Subordinated Security.
No reference herein to the Indenture and no provision of this
Subordinated Security or of the Indenture shall alter or impair the obligation
of the Corporation, which is absolute and unconditional, to pay the principal
of, Make-Whole Amount, if any, on, and interest on this Subordinated Security at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Subordinated Security is registrable in the
Security Register, upon surrender of this Subordinated Security for registration
of transfer at the office or agency of the Corporation in any Place of Payment
where the principal of, Make-Whole Amount, if any, on, and interest on
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this Subordinated Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar for the Subordinated Securities (the "Security Registrar")
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Subordinated Securities of this series, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Subordinated Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Subordinated Securities of this series are
exchangeable for a like aggregate principal amount of Subordinated Securities of
this series 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 Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Subordinated Security for registration
of transfer, the Corporation, the Trustee and any agent of the Corporation or
the Trustee may treat the Person in whose name this Subordinated Security is
registered as the owner hereof for all purposes, whether or not this
Subordinated Security be overdue, and neither the Corporation, the Trustee nor
any such agent shall be affected by notice to the contrary.
The Holder of this Subordinated Security by the acceptance thereof
agrees that the indebtedness evidenced by this Subordinated Security is
subordinated in right of payment, to the extent and in the manner provided in
Article Sixteen of the Indenture, to the prior payment in full of all Senior
Debt and that the subordination is for the benefit of the holders of Senior
Debt. The Holder hereof authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effect such subordination as
provided in the Indenture and appoints the Trustee his attorney-in-fact for such
purpose. "Senior Debt" is defined in the Indenture as the principal of and
interest on, or substantially similar payments to be made by the Corporation in
respect of, the following, whether outstanding at the date of execution of this
Indenture or thereafter incurred, created or assumed: (a) indebtedness of the
Corporation for money borrowed or represented by purchase-money obligations, (b)
indebtedness of the Corporation evidenced by notes, debentures, or bonds, or
other securities issued under the provisions of an indenture, fiscal agency
agreement or other instrument, (c) obligations of the Corporation as lessee
under leases of property either made as part of any sale and lease-back
transaction to which the Corporation is a party or otherwise, (d) indebtedness
of partnerships and joint ventures which is included in the Corporation's
consolidated financial statements, (e) indebtedness, obligations and liabilities
of others in respect of which the Corporation is liable contingently or
otherwise to pay or advance money or property or as guarantor, endorser or
otherwise or which the Corporation has agreed to purchase or otherwise acquire,
and (f) any binding commitment of the Corporation to fund any real estate
investment or to fund any investment in any entity making such real estate
investment; but excluding, however, (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Subordinated Securities, or ranks pari
passu with the
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Subordinated Securities, (2) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Corporation to substantially the
same extent as or to a greater extent than the Subordinated Securities are
subordinated and (3) the Subordinated Securities. As used in the preceding
sentence the term "purchase-money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other instrument (whether or
not secured by any lien or other security interest but excluding indebtedness or
obligations for which recourse is limited to the property purchased) issued or
assumed as all or a part of the consideration for the acquisition of property,
whether by purchase, merger, consolidation or otherwise, but shall not include
any trade accounts payable. A distribution may consist of cash, securities or
other property.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Subordinated Security, or because of any
indebtedness evidenced thereby, shall be had against any promoter, as such or,
against any past, present or future shareholder, officer or director, as such,
of the Corporation or of any successor, either directly or through the
Corporation or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of this Subordinated Security by the Holder thereof and as
part of the consideration for the issue of the Subordinated Securities.
All terms used in this Subordinated Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SUBORDINATED SECURITIES, INCLUDING THIS
SUBORDINATED SECURITY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF FLORIDA.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Corporation has caused "CUSIP" numbers
to be printed on the Subordinated Securities as a convenience to the Holders of
the Subordinated Securities. No representation is made as to the correctness or
accuracy of such CUSIP numbers as printed on the Subordinated Securities, and
reliance may be placed only on the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Subordinated Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal this day of, .
Xxxxx Equity, Inc.
By:
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Name:
-----------------------------------
Title:
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Attest:
By:
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Name
-------------------------------------
Title:
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[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Subordinated Securities of the series designated
"[designation of Subordinated Securities]" pursuant to the within-mentioned
Indenture.
-----------------------------, as Trustee
By:
-------------------------------------
Authorized Signatory
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
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(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
________________________________________________________ the within Subordinated
Security of Xxxxx Equity, Inc. and _____________________ hereby does irrevocably
constitute and appoint
____________________________________________________________Attorney to transfer
said Subordinated Security on the books of the within-named Corporation with
full power of substitution in the premises.
Dated:
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NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Subordinated Security in every
particular, without alteration or enlargement or any change whatever.
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