JUNIOR SUBORDINATED INDENTURE

Exhibit 4.1

EXECUTION VERSION

JUNIOR SUBORDINATED INDENTURE

between

BRT REALTY TRUST

and

THE BANK OF NEW YORK MELLON,

as Trustee

 

Dated as of May 26, 2009

 

TABLE OF CONTENTS

 

J unior S ubordinated I ndenture , dated as of May 26, 2009 , between BRT Realty Trust, a Massachusetts business trust (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 has duly authorized the execution and delivery of this Indenture to provide for the issuance of its unsecured junior subordinated notes (the “ Securities ”) to be issued in exchange for its outstanding trust preferred securities,   and to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered; and

W hereas , 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 herein and the purchase of the Securities by the Holders, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:

1.

 

Definitions and Other Provisions of General Application

 

(a)                            Definitions.

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

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

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

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

(iv)         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;

(v)          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;

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

 

(vii)           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.

“ Advance Interest Amounts ” shall mean all interest paid by the Company annually in advance during the first, second and third years of the Modification Period.

“ Affiliate ”   of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Applicable Depositary Procedures ”   means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time.

“ Authenticating Agent ”   means any Person authorized by the Trustee pursuant to Section 6.11 to act on behalf of the Trustee to authenticate the Securities.

“ Board of Trustees ”   means the board of trustees of the Company or any duly authorized committee of that board.

“ Board Resolution ”   means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Trustees and to be in full force and effect on the date of such certification.

“ Business Day ”   means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in the City of New York are authorized or required by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee is closed for business.

“ Calculation Agent ”   has the meaning specified in Section 10.4 .

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

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

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

“ Company Request ”   and “ Company Order ”   mean, respectively, the written request or order signed in the name of the Company by its Chairman of the Board of Trustees, its Vice Chairman of the Board of Trustees, 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.

“ 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, NY 10286 Attn: Corporate Trust – BRT Realty Trust.  Initially, all notices and correspondence shall be addressed to Jared Fischer, telephone (212) 815-8139.

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

“ Defaulted Interest ”   has the meaning specified in Section 3.1 .

“ Depositary ”   means an organization registered as a clearing agency under the Exchange Act that is designated as Depositary by the Company or any successor thereto.

“ Depositary Participant ”   means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Depositary effects book-entry transfers and pledges of securities deposited with the Depositary.

“ Dollar ”   or “ $ ”   means the currency of the United States of America that, as at the time of payment, is legal tender for the payment of public and private debts.

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

“ Equity Interests ”   means (a) the partnership interests (general or limited) in a partnership, (b) the membership interests in a limited liability company, (c) the shares or stock interests (both common stock and preferred stock) in a corporation, and (d) the shares of beneficial interest (both preferred and common shares of beneficial interest) in a business trust.

“ Eligible Investments ” means any Dollar-denominated investment that is one or more of the following (and may include investments for which the Trustee and/or its affiliates provides services or receives compensation):

(a)          direct registered obligations of, and registered obligations the timely payment of principal of and interest on which is fully and expressly guaranteed by, the United States of America, or any agency or instrumentality of the United States of America the obligations of which are backed by the full faith and credit of the United States of America;

(b)          demand and time deposits in, and certificates of deposit of, bankers acceptances issued by, or federal funds sold by any depository institution or trust company (including the Trustee) organized under the laws of the United States of America or any state thereof and subject to the supervision and examination by federal and/or state banking authorities so long as the commercial paper and/or debt obligations of such depository institution or trust company (or, in the case of the principal depository institution in a holding company system, the commercial paper or debt obligations of such holding company) at the time of such investment or contractual commitment providing for such investment have a credit rating of “Aa2” by Moody’s, “AA-” by Standard & Poor’s and, if rated by Fitch, “AA-” by Fitch, in the case of debt obligations, or “P-1” by Moody’s and, if rated by Fitch, “F1+” by Fitch or better, in the case of commercial paper and short-term debt obligations;

(c)           registered securities bearing interest or sold at a discount issued by any corporation under the laws of the United States of America or any state thereof that have a credit rating of “Aa3” by Moody’s, “AA-” by Standard & Poor’s and, if rated by Fitch, “AA-” by Fitch at the time of such investment or contractual commitment providing for such investment;

(d)          unleveraged repurchase obligations with respect to any security described in clause (a) above, entered into with a depository institution or trust company (acting as principal) described in clause (b) or entered into with a corporation (acting as principal) whose short-term debt has a credit rating of “P-1” by Moody’s, “A -1+” by Standard & Poor’s and, if rated by Fitch, “F1+” by Fitch or better at the time of such investment in the case of any repurchase obligation for a security having a maturity not more than 183 days from the date of its issuance or whose long-term debt has a credit rating of “Aa3” by Moody’s, “AA-” by Standard & Poor’s and, if rated by Fitch, “AA-” by Fitch or better at the time of such investment in the case of any repurchase obligation for a security having a maturity more than 183 days from the date of its issuance;

(e)          commercial paper or other short-term obligations having at the time of such investment a credit rating of “P-1” by Moody’s, “A -1+” by Standard & Poor’s and, if rated by Fitch, “F1+” by Fitch or better and either are bearing interest or are sold at a discount from the face amount thereof and that have a maturity of not more than 183 days from its date of issuance; provided, that in the case of commercial paper with a maturity of longer than 91 days, the issuer of such commercial paper (or, in the case of a principal depository institution in a holding company system, the holding company of such system), if rated by any Rating Agency, must have at the time of such investment a long-term credit rating of “Aa2” by Moody’s, “AA-” by Standard & Poor’s and, if rated by Fitch, “AA-” by Fitch;

(f)           offshore money market funds with respect to any investments described in clauses (a) through (e) above having, at the time of such investment, a credit rating of not less than “MR1+” and “Aaa” by Moody’s, “AAAm” or “AAAm-G” by Standard & Poor’s and, if rated by Fitch, “AAA” by Fitch; and

(g)          interest-bearing demand cash accounts held at the Bank;

provided, that Eligible Investments purchased with funds in the Payment Account shall be held until maturity except as otherwise specifically provided herein and shall include only such obligations or securities as mature no later than the Business Day prior to the Interest Payment Date next succeeding the date of investment in such obligations or securities, unless such Eligible Investments are issued by the Trustee in its capacity as a banking institution, in which event such Eligible Investments may mature on such Interest Payment Date; and provided, further, that Eligible Investments shall not have payments subject to foreign or United States withholding tax, shall not be subject to an Offer, shall not be “mortgage -backed securities,” shall not have a Standard & Poor’s rating which contains a subscript “r,” “t,” “p,” “pi” or “q” and shall not have all, or substantially all, of the remaining amounts payable thereunder consist of interest and not principal payments

“ Event of Default ”   has the meaning specified in Section 5.1 .

“ Exchange Act ”   means the Securities Exchange Act of 1934 or any statute successor thereto, in each case as amended from time to time.

“ Exchange Agreement ” means that certain Exchange Agreement executed and delivered contemporaneously with this Indenture by the Company and Taberna Preferred Funding IV, Ltd, Taberna Preferred Funding V, Ltd. and Taberna Preferred Funding VI, Ltd, as the same may be amended from time to time.

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

“ Fixed Rate ”   means a rate equal to (a) for each Interest Period occurring during the Modification Period, a fixed rate equal to three and one-half percent (3.50%) per annum and (b) for the Interest Period commencing on August 1, 2012 and for each Interest Period thereafter through and including April 29, 2016, a fixed rate equal to 8.37%.

“ Fixed Rate Period ” has the meaning specified in Section 3.1(a) .

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

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

“ Government Obligation ”   means (a) any security that is (i) a direct obligation of the United States of America of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any depositary receipt issued by a bank (as defined in section 3(a)(2) of the Securities Act) as custodian with respect to any Government Obligation that is specified in clause (a) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any Government Obligation that is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

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

“ Holder Representative ” means, for so long as the Modification Period remains in effect, the person designated by a majority of the Holders to direct the Trustee in respect of the investment of Advance Interest Amounts received by the Trustee and deposited in the Payment Account and the distribution of Advance Interest Amounts and investment proceeds earned thereon as contemplated by Section 1.14 hereof.  The Holders have initially designated Taberna Capital Management, LLC as the Holder Representative.

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

“ Interest Payment Date ”   means (a) during the Modification Period, a date no later than fifteen (15) days prior to May 1 of each year, and (b) following the Modification Period, January 30, April 30, July 30 and October 30 of each year, commencing on October 30, 2012, during the remaining term of this Indenture.

“ Interest Period ” means (a) during the term of the Modification Period, the period commencing on May 1 of each year, commencing on May 1, 2009, and continuing through and including the day prior to the next succeeding May 1, provided that the Interest Period commencing on May 1, 2012 shall continue through and include July 31, 2012, and (b) following the Modification Period, the period commencing on an Interest Payment Date and continuing through and including the day prior to the next succeeding Interest Payment Date; provided, however, that the first Interest Period after the Modification Period shall commence on August 1, 2012 and continue through and including the day prior to the next succeeding Interest Payment Date.

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

“ LIBOR ”   has the meaning specified in Schedule A .

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

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

“ Maturity, ”   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.

“ Modification Period ” means the means the period commencing on May 1, 2009 and continuing through and including July 31, 2012.

“ Notice of Default ”   means a written notice of the kind specified in Section 5.1(c) .

“ Officers’ Certificate ”   means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or a Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company and delivered to the Trustee.

“ Opinion of Counsel ”   means a written opinion of counsel, who may be counsel for or an employee of the Company or any Affiliate of the Company.

“ Optional Redemption Price ”   has the meaning set forth in Section 11.1 .

“ Original Issue Date ”   means the date of original issuance of each Security.

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

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

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.

“ Payment Account ” has the meaning set forth in Section 1.14 .

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

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

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

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

“ Redemption Date ”   means, when used with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this Indenture.

“ Redemption Price ”   means, when used with respect to any Security to be redeemed, in whole or in part, the Optional Redemption Price at which such Security or portion thereof is to be redeemed as fixed by or pursuant to this Indenture.

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

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

 

“ REIT ” means “real estate investment trust” within the meaning of Section 856 of the Code.

“ Responsible Officer ”   means, when used with respect to the Trustee, any officer in the Corporate Trust Office (or any successor office of the Trustee) authorized to act for and on behalf of the Trustee, including any vice president, assistant vice president or other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred in the Corporate Trust Office because of such person’s knowledge and familiarity with the particular subject.

“ Revenue Procedure ” means Internal Revenue Service Revenue Procedure 2008-68 or any procedure successor thereto, in each case as extended or amended from time to time.

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

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

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

“ Senior Debt ”   means the principal of and any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not such claim for post-petition interest is allowed in such proceeding) all Debt of the Company, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless it is provided in the instrument creating or evidencing the same or pursuant to which the same is outstanding, that such obligations are not superior in right of payment to the Securities issued under this Indenture; provided that Senior Debt shall not be deemed to include any (i) debt or (ii) other debt securities (and guarantees, if any, in respect of such debt securities) issued to any trust (or a trustee of any such trust), partnership or other entity affiliated with the Company that is a financing vehicle of the Company (a “financing entity”) in connection with the issuance by such financing entity of equity securities or other securities, in each case of (i) or (ii) pursuant to an instrument that ranks pari passu with or junior in right of payment to this Indenture.

“ Shareholders Act ” means the Shareholders Communication Act of 1985 (as amended from time to time).

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

“ Stated Maturity ”   means April 30, 2036.

“ Subordinated Debt ” means any Debt that is subordinated in right of payment and security to the Securities.

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

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

“ Trustee ”   means the Person named as the “ Trustee ”   in the first paragraph of this instrument, solely in its capacity as such and not in its individual capacity, until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and, thereafter, “ Trustee ”   shall mean or include each Person who is then a Trustee hereunder.

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

(b)                            Compliance Certificate and Opinions.

(i)           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.

(ii)          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:

(c)                            Forms of Documents Delivered to Trustee.

(i)            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.

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

(iii)           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.

(iv)           Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Officers’ Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other inadvertent or unintentional error or omission shall be discovered therein, a new document or instrument may be substituted therefor in corrected form with the same force and effect as if originally received in the corrected form and, irrespective of the date or dates of the actual execution and/or delivery thereof, such substitute document or instrument shall be deemed to have been executed and/or delivered as of the date or dates required with respect to the document or instrument for which it is substituted.  Without limiting the generality of the foregoing, any Securities issued under the authority of such defective document or instrument shall nevertheless be the valid obligations of the Company entitled to the benefits of this Indenture equally and ratably with all other Outstanding Securities.

(d)                            Acts of Holders.

(i)           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 .

(ii)           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.

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

(iv)           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.

(v)           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.

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

(vii)           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 .

(viii)          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 (90 ^th ) 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 (180 ^th ) day after the applicable record date.

(e)                            Notices, Etc. to Trustee and Company.

(i)            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:

(ii)           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.

(iii)           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.

(f)                            Notice to Holders; Waiver.

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

(g)                            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.

(h)                            Successors and Assigns.

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

(i)                            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.

(j)                            Benefits of Indenture.

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

(k)                            Governing Law.

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

(l)                            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.

(m)                            Non-Business Days.

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

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

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

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

(n)                            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.”  Amounts received from the Company, including Advance Interest Amounts received by the Trustee during the Modification Period, shall be deposited by the Trustee into the Payment Account and shall relieve the Company of its obligations with respect to amounts so paid.  The Trustee shall, without any further direction from the Company, make payments in respect of the Securities from amounts on deposit in the Payment Account as the same become due on each Interest Payment Date, provided that each Holder agrees that Advance Interest Amounts shall be disbursed by the Trustee in equal amounts quarterly on each date that would be an Interest Payment Date following the Modification Period commencing on July 30, 2009 and as otherwise set forth in this Section 1.14 (except in the case of the Interest Period ending on July 31, 2012, in which instance all Advance Interest Amounts shall be disbursed to the Holders).  Any Advance Interest Amounts shall be invested in Eligible Investments as directed by the Holder Representative (and agreed to by the Trustee).  Neither the Company nor the Trustee shall be liable for losses incurred on investments made at the direction of the Holder Representative as provided herein.  Any investment proceeds deposited into the Payment Account shall be distributed to the Holders on a pro rata basis at such times and as so directed by the Holder Representative.  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.  Except for Advance Interest Amounts invested in accordance with this Section, amounts in the Payment Account shall be held uninvested.

2.

 

Security Forms

 

(a)                            Form of Security.

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

BRT Realty Trust

Junior Subordinated Note due 2036

BRT Realty Trust, a business trust organized and existing under the laws of Massachusetts (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 ________________ ($__________) [ if the Security is a Global Security, then insert — or such other principal amount represented hereby as may be set forth in the records of the Securities Registrar hereinafter referred to in accordance with the Indenture] on April 30, 2036.  During the Modification Period, the Company further promises to pay interest on said principal sum from May 1, 2009, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, annually in advance (all such interest paid by the Company in advance during the first, second and third years of the Modification Period, the “Advance Interest Amounts”)  no later than fifteen (15) days prior to May 1 of each year (for purposes of clarification, the interest payable no later than fifteen (15) days prior to May 1, 2012 shall be with respect to the period ending July 31, 2012) provided that each Holder agrees that Advance Interest Amounts shall be disbursed by the Trustee in equal amounts quarterly on each date that would be an Interest Payment Date following the Modification Period commencing on July 30, 2009 and as otherwise set forth in this Section 1.14 (except in the case of the Interest Period ending on July 31, 2012, in which instance all Advance Interest Amounts shall be disbursed to the Holders).  Further, following the Modification Period, the Company further promises to pay interest on said principal sum from August 1, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly in arrears on January 30, April 30, July 30 and October 30 of each year, commencing on October 30, 2012, or if any such day is not a Business Day, then such payment shall be paid on the next succeeding Business Day (and no interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after such Interest Payment Date until such next succeeding Business Day), except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on the Interest Payment Date, at a fixed rate equal to the applicable Fixed Rate through the Interest Payment Date occurring in April 2016 (the “ Fixed Rate Period ”), and thereafter, the Company further promises to pay interest on said principal sum at a variable rate equal to LIBOR plus 2.95% per annum, until the principal hereof is paid or duly provided for or made available for payment; provided, further, that any overdue principal, premium, if any, and any overdue installment of interest shall bear Additional Interest at a fixed rate equal to the applicable Fixed Rate then in effect through the Interest Payment Date occurring in April 2016 and thereafter at a variable rate equal to LIBOR plus 2.95% per annum (to the extent that the payment of such interest shall be legally enforceable), compounded quarterly, from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand.

If the Company elects to redeem this Security in whole or in part during the Modification Period, the Advance Interest Amount paid by the Company for the year in which such redemption shall occur shall be credited dollar for dollar against and shall reduce, on a pro-rata basis (based on the number of days remaining in the Interest Period during which such redemption shall occur), the amount which would otherwise be due and payable to holders of this Security from the Company upon such redemption.

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

 

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

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

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

For information regarding the “issue price,” “issue date,” the amount of “original issue discount” and “yield to maturity” for U.S. federal income tax purposes, please contact   David Kalish at davidk@brtrealty.com.

[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 May 26, 2009 (the “ Indenture ”),   between the Company and The Bank of New York Mellon, a New York banking corporation, as Trustee (in such capacity, the “ Trustee ”   which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the holders of Senior Debt and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered.

All terms used in this Security that are not defined herein shall have the meanings assigned to them in the Indenture.

The Company may, on any Interest Payment Date, at its option, upon not less than thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders of the Securities (unless a shorter notice period shall be satisfactory to the Trustee) and subject to the terms and conditions of Article XI of the Indenture, redeem this Security in whole at any time or in part from time to time at a Redemption Price equal to one hundred percent (100%) of the principal amount hereof, together, in the case of any such redemption, with accrued interest, including any Additional Interest, through but excluding the date fixed as the Redemption Date.

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

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

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is restricted to transfers to (i) the Company or an Affiliate thereof, (ii) “Qualified Institutional Buyers” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”)), (iii) outside the United States in an offshore transaction in accordance with Regulation S under the Securities Act, (iv) pursuant to an effective registration statement under the Securities Act or (v) pursuant to another exemption from registration under the Securities Act and, in the case of clauses (ii), (iii), (iv) or (v), a person whom the Company reasonably believes also is a “Qualified Purchaser” (as defined in Section 2(a)(51) of the Investment Company Act of 1940, as amended, and is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar and duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Securities, of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

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

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

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

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

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

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed on this _____ day of May, 2009.

 

(b)                            Restricted Legend.

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

 

(ii)           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.

(c)                            Form of Trustee’s Certificate of Authentication.

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