EXHIBIT
4.1
JUNIOR
SUBORDINATED INDENTURE
between
Hersha
Hospitality Limited Partnership
and
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION,
as
Trustee
________________
Dated as
of
May 13,
2005
________________
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Page
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ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section
1.1.
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Definitions
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1
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Section
1.2.
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Compliance
Certificate and Opinions
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9
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Section
1.3.
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Forms
of Documents Delivered to Trustee
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10
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Section
1.4.
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Acts
of Holders
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10
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Section
1.5.
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Notices,
Etc. to Trustee and Company
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12
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Section
1.6.
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Notice
to Holders; Waiver
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12
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Section
1.7.
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Effect
of Headings and Table of Contents
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13
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Section
1.8.
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Successors
and Assigns
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13
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Section
1.9.
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Separability
Clause
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13
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Section
1.10.
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Benefits
of Indenture
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13
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Section
1.11.
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Governing
Law
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13
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Section
1.12.
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Submission
to Jurisdiction
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14
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Section
1.13.
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Non-Business
Days
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14
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ARTICLE
II
SECURITY
FORMS
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14
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Section
2.1.
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Form
of Security
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14
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Section
2.2.
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Restricted
Legend
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19
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Section
2.3.
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Form
of Trustee's Certificate of Authentication
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20
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Section
2.4.
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Temporary
Securities
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21
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Section
2.5.
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Definitive
Securities
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21
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ARTICLE
III
THE
SECURITIES
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21
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Section
3.1.
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Payment
of Principal and Interest
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21
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Section
3.2.
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Denominations
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23
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Section
3.3.
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Execution,
Authentication, Delivery and Dating
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23
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Section
3.4.
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Global
Securities
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24
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Section
3.5.
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Registration,
Transfer and Exchange Generally
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26
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Section
3.6.
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Mutilated,
Destroyed, Lost and Stolen Securities
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28
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Section
3.7.
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Persons
Deemed Owners
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28
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Section
3.8.
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Cancellation
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29
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Section
3.9.
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Reserved
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29
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(continued)
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Page
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Section
3.10.
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Reserved
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29
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Section
3.11.
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Agreed
Tax Treatment
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29
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Section
3.12.
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CUSIP
Numbers
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29
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ARTICLE
IV
SATISFACTION
AND DISCHARGE
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29
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Section
4.1.
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Satisfaction
and Discharge of Indenture
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29
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Section
4.2.
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Application
of Trust Money
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31
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ARTICLE
V
REMEDIES
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31
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Section
5.1.
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Events
of Default
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31
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Section
5.2.
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Acceleration
of Maturity; Rescission and Annulment
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32
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Section
5.3.
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Collection
of Indebtedness and Suits for Enforcement by Trustee.
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33
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Section
5.4.
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Trustee
May File Proofs of Claim
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34
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Section
5.5.
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Trustee
May Enforce Claim Without Possession of Securities
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34
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Section
5.6.
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Application
of Money Collected
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34
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Section
5.7.
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Limitation
on Suits
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35
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Section
5.8.
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Unconditional
Right of Holders to Receive Principal, Premium, if any, and Interest;
Direct Action by Holders of Preferred Securities
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35
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Section
5.9.
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Restoration
of Rights and Remedies
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35
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Section
5.10.
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Rights
and Remedies Cumulative
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36
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Section
5.11.
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Delay
or Omission Not Waiver
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36
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Section
5.12.
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Control
by Holders
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36
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Section
5.13.
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Waiver
of Past Defaults
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36
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Section
5.14.
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Undertaking
for Costs
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37
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Section
5.15.
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Waiver
of Usury, Stay or Extension Laws
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37
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ARTICLE
VI
THE
TRUSTEE
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38
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Section
6.1.
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Corporate
Trustee Required
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38
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Section
6.2.
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Certain
Duties and Responsibilities
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38
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Section
6.3.
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Notice
of Defaults
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40
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Section
6.4.
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Certain
Rights of Trustee
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40
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Section
6.5.
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May
Hold Securities
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42
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Section
6.6.
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Compensation;
Reimbursement; Indemnity
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42
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Page
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Section
6.7.
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Resignation
and Removal; Appointment of Successor
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43
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Section
6.8.
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Acceptance
of Appointment by Successor
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44
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Section
6.9.
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Merger,
Conversion, Consolidation or Succession to Business
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44
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Section
6.10.
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Not
Responsible for Recitals or Issuance of Securities
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45
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Section
6.11.
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Appointment
of Authenticating Agent
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45
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ARTICLE
VII
HOLDER'S
LISTS AND REPORTS BY COMPANY
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46
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Section
7.1.
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Company
to Furnish Trustee Names and Addresses of Holders
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46
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Section
7.2.
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Preservation
of Information, Communications to Holders
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47
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Section
7.3.
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Reports
by Company
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47
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ARTICLE
VIII
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
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48
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Section
8.1.
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Company
May Consolidate, Etc., Only on Certain Terms
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48
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Section
8.2.
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Successor
Company Substituted
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48
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ARTICLE
IX
SUPPLEMENTAL
INDENTURES
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49
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Section
9.1.
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Supplemental
Indentures without Consent of Holders
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49
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Section
9.2.
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Supplemental
Indentures with Consent of Holders
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50
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Section
9.3.
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Execution
of Supplemental Indentures
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50
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Section
9.4.
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Effect
of Supplemental Indentures
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51
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Section
9.5.
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Reference
in Securities to Supplemental Indentures
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51
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ARTICLE
X
COVENANTS
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51
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Section
10.1.
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Payment
of Principal, Premium, if any, and Interest
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51
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Section
10.2.
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Money
for Security Payments to be Held in Trust
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51
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Section
10.3.
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Statement
as to Compliance
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52
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Section
10.4.
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Calculation
Agent
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53
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Section
10.5.
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Additional
Tax Sums
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53
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Section
10.6.
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Additional
Covenants
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54
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Section
10.7.
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Waiver
of Covenants
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55
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Section
10.8.
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Treatment
of Securities
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55
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ARTICLE
XI
REDEMPTION
OF SECURITIES
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55
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Section
11.1.
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Optional
Redemption
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55
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Section
11.2.
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Special
Event Redemption
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55
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Page
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Section
11.3.
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Election
to Redeem; Notice to Trustee
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56
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Section
11.4.
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Selection
of Securities to be Redeemed
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56
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Section
11.5.
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Notice
of Redemption
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56
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Section
11.6.
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Deposit
of Redemption Price
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57
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Section
11.7.
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Payment
of Securities Called for Redemption
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57
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ARTICLE
XII
SUBORDINATION
OF SECURITIES
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58
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Section
12.1.
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Securities
Subordinate to Senior Debt
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58
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Section
12.2.
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No
Payment When Senior Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc.
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58
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Section
12.3.
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Payment
Permitted If No Default
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59
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Section
12.4.
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Subrogation
to Rights of Holders of Senior Debt
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60
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Section
12.5.
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Provisions
Solely to Define Relative Rights
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60
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Section
12.6.
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Trustee
to Effectuate Subordination
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61
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Section
12.7.
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No
Waiver of Subordination Provisions
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61
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Section
12.8.
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Notice
to Trustee
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61
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Section
12.9.
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Reliance
on Judicial Order or Certificate of Liquidating Agent
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62
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Section
12.10.
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Trustee
Not Fiduciary for Holders of Senior Debt
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62
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Section
12.11.
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Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights
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62
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Section
12.12.
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Article
Applicable to Paying Agents
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62
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SCHEDULES
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Schedule
A
-
Determination
of LIBOR
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Exhibit
A
-
Form
of Officer's Financial Certificate
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JUNIOR
SUBIRDUBATED INDENTURE
, dated
as of
May 13,
2005, between Hersha Hospitality Limited Partnership, a Virginia limited
partnership (the "
Company
"
), and
JPMorgan
Chase Bank, National Association,
a national
banking corporation, as Trustee (in such capacity, the "
Trustee
"
).
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
"
) issued
to evidence loans made to the Company of the proceeds from the issuance by
Hersha Statutory Trust I
,
a
Delaware
statutory
trust (the "
Trust
"
), of
undivided preferred beneficial interests in the assets of the Trust (the
"
Preferred
Securities
"
) and
undivided common beneficial interests in the assets of the Trust (the
"
Common
Securities
"
and,
collectively with the Preferred Securities, the "
Trust
Securities
"
), and to
provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered; and
WHEREAS
, all
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW,
THEREFORE
, this
Indenture Witnesseth:
For and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
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(a)
.
"
Administrative
Trustee
" means,
with respect to the Trust, each Person identified as an "Administrative Trustee"
in the Trust Agreement, solely in its capacity as Administrative Trustee of the
Trust under the Trust Agreement and not in its individual capacity, or its
successor in interest in such capacity, or any successor Administrative Trustee
appointed as therein provided.
"
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.
"
Additional
Tax Sums
"
has the
meaning specified in
Section
10.5
.
"
Additional
Taxes
"
means
taxes, duties or other governmental charges imposed on the Trust as a result of
a Tax Event (which, for the sake of clarity, does not include amounts required
to be deducted or withheld by the Trust from payments made by the Trust to or
for the benefit of the Holder of, or any Person that acquires a beneficial
interest in, the Securities).
"
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.
"
Bankruptcy
Code
"
means
Title 11 of the United States Code or any successor statute(s) thereto, or any
similar federal or state law for the relief of debtors, in each case as amended
from time to time.
"
Board
of Directors
"
means the
board of directors of the Company or any duly authorized committee of that
board.
"
Board
Resolution
"
means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
"
Business
Day
"
means
any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee is closed for business.
"
Calculation
Agent
" has the
meaning specified in
Section
10.4
.
"
Common
Securities
"
has the
meaning specified in the first recital of this Indenture.
"
Company
"
means the
Person named as the "
Company
"
in the
first paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "
Company
"
shall
mean such successor corporation.
"
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 Directors, its Vice Chairman of the Board of
Directors, 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
600
Travis, 50
th
Floor,
Houston, Texas 77002 Attn: Institutional Trust Services—
Hersha
Statutory Trust I
.
"
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(c)
.
"
Delaware
Trustee
" means,
with respect to the Trust, the Person identified as the "Delaware Trustee" in
the Trust Agreement, solely in its capacity as Delaware Trustee of the Trust
under the Trust Agreement and not in its individual capacity, or its successor
in interest in such capacity, or any successor Delaware Trustee appointed as
therein provided.
"
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. DTC will be
the initial Depositary.
"
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.
"
Distributions
"
means
amounts payable in respect of the Trust Securities as provided in the Trust
Agreement and referred to therein as "Distributions."
"
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.
"
DTC
"
means The Depository Trust Company, a New York corporation, or any successor
thereto.
"
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.
"
Expiration
Date
"
has the
meaning specified in
Section
1.4(h)
.
"
Fixed
Rate Period
" has the meaning specified in Section 2.1.
"
GAAP
" means
United States generally accepted accounting principles, consistently applied,
from time to time in effect.
"
Global
Security
"
means
a Security that evidences all or part of the Securities, the ownership and
transfers of which shall be made through book entries by a
Depositary.
"
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.
"
HHT
"
means Hersha Hospitality Trust, a Maryland real estate investment trust and the
general partner of the Company.
"
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.
"
Interest
Payment Date
"
means
March 30, June 30, September 30, and December 30 of each year, commencing on
June 30, 2005, during the term of this Indenture.
"
Investment
Company Act
"
means
the Investment Company Act of 1940 or any successor statute thereto, in each
case as amended from time to time.
"
Investment
Company Event
"
means
the receipt by the Company of an Opinion of Counsel experienced in such matters
to the effect that, as a result of the occurrence of a change in law or
regulation (including any announced prospective change) or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or, within ninety (90) days of the date of
such opinion will be, considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Securities.
"
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
.
"
Liquidation
Amount
" has the
meaning specified in the Trust Agreement.
"
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, 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 HHTand delivered to the Trustee.
"
Operative
Documents
"
means the
Trust Agreement, the Indenture, the Purchase Agreement and the
Securities.
"
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.
"
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 (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) 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, 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.
Notwithstanding anything herein to the contrary, Securities initially issued to
the Trust that are owned by the Trust shall be deemed to be Outstanding
notwithstanding the ownership by the Company or an Affiliate of any beneficial
interest in the Trust.
"
Paying
Agent
"
means the
Trustee or any Person authorized by the Company 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, limited liability company, trust,
unincorporated association, 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.
"
Preferred
Securities
"
has the
meaning specified in the first recital of this Indenture.
"
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)
.
"
Property
Trustee
"
means the
Person identified as the "Property Trustee" in the Trust Agreement, solely in
its capacity as Property Trustee of the Trust under the Trust Agreement and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Property Trustee appointed as therein provided.
"
Purchase
Agreement
"
means the
agreement, dated as of the date hereof, between the Company and the Trust and
Purchaser named therein.
"
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
Special Redemption Price or the Optional Redemption Price, as applicable, at
which such Security or portion thereof is to be redeemed as fixed by or pursuant
to this Indenture.
"
Reference
Banks
" has the
meaning specified in
Schedule
A
.
"
Regular
Record Date
"
for the
interest payable on any Interest Payment Date with respect to the Securities
means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).
"
Responsible
Officer
"
means,
when used with respect to the Trustee, the officer in the Institutional Trust
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(a)
.
"
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 other debt securities (and
guarantees, if any), in respect of such debt securities issued to any trust
other than the 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 that are treated as equity capital for
regulatory capital purposes guaranteed by the Company pursuant to an instrument
that ranks
pari
passu
with or
junior in right of payment to this Indenture.
"
Special
Event
"
means the
occurrence of an Investment Company Event or a Tax Event.
"
Special
Record Date
"
for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section
3.1
.
"
Special
Redemption Price
" has the
meaning set forth in
Section
11.2
.
"
Stated
Maturity
"
means
June 30, 2035.
"
Subsidiary
"
means a
Person more than fifty percent (50%) of the outstanding voting stock or other
voting interests of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, "
voting
stock
" means
stock that ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"
Tax
Event
"
means
the receipt by the Company of an Opinion of Counsel experienced in such matters
to the effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or
therein or (b) any judicial decision or any official administrative
pronouncement (including any private letter ruling, technical advice memorandum
or field service advice) or regulatory procedure, including any notice or
announcement of intent to adopt any such pronouncement or procedure (an
"
Administrative
Action
"),
regardless of whether such judicial decision or Administrative Action is issued
to or in connection with a proceeding involving the Company or the Trust and
whether or not subject to review or appeal, which amendment, change, judicial
decision or Administrative Action is enacted, promulgated or announced, in each
case, on or after the date of issuance of the Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within ninety (90) days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Securities, (ii) interest payable
by the Company on the Securities is not, or within ninety (90) days of the date
of such opinion, will not be, deductible by the Company, in whole or in part,
for United States federal income tax purposes, or (iii) the Trust is, or will be
within ninety (90) days of the date of such opinion, subject to more than a
de
minimis
amount
of other taxes, duties or other governmental charges.
"
Trust
"
has the
meaning specified in the first recital of this Indenture.
"
Trust
Agreement
"
means
the
Amended
and Restated
Trust
Agreement executed and delivered by the Company, the Property Trustee, the
Delaware Trustee and the Administrative Trustees named therein,
contemporaneously with the execution and delivery of this Indenture, for the
benefit of the holders of the Trust Securities, as amended or supplemented from
time to time.
"
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.
"
Trust
Securities
"
has the
meaning specified in the first recital of this Indenture.
(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.
(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.
(a)
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b)
Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or after reasonable inquiry should know,
that the certificate or opinion or representations with respect to matters upon
which his or her certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or after reasonable inquiry should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c)
Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(d)
Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officers'
Certificate, Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be substituted therefor in
corrected form with the same force and effect as if originally received in the
corrected form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall be deemed
to have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Securities.
(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 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 (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.
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:
(a)
the
Trustee by any Holder, any holder of Preferred Securities 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
(b)
the
Company by the Trustee, any Holder or any holder of Preferred Securities shall
be sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Company addressed to it at 510 Walnut Street, 9th
Floor
,
Philadelphia,
PA 19106
or at any
other address previously furnished in writing to the Trustee by the
Company.
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, and not earlier than the earliest date, 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.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.
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.
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.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt, the Holders of the Securities and, to the extent
expressly provided in
Sections
5.2
,
5.8
,
5.9
,
5.11
,
5.13
,
9.2
and
10.7
, the
holders of Preferred Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
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).
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.
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.
Any
Security issued hereunder shall be in substantially the following
form:
Hersha
Hospitality Limited Partnership
Junior
Subordinated Notes due 2035
|
No._____________
|
$ 25,774,000
|
Hersha
Hospitality Limited Partnership, a limited partnership organized and existing
under the laws of the Commonwealth of Virginia (hereinafter called the
"
Company
,"
which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to JPMorgan Chase Bank, National
Association, or registered assigns, the principal sum of
Twenty-Five
Million Seven Hundred Seventy-Four Thousand
Dollars
($25,774,000)
[
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 June
30, 2035. The Company further promises to pay interest on said principal sum
from May 11, 2005 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, quarterly
in
arrears on March 30, June 30, September 30 and December 30, of each year,
commencing June 30, 2005, or if any such day is not a Business Day, on the
next succeeding Business Day (and no interest shall accrue in respect of the
amounts whose payment is so delayed for the period from and after such Interest
Payment Date until such next succeeding Business Day), except that, if such
Business Day falls in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on the Interest Payment Date, at a fixed rate equal
to 7.34% per annum through the interest payment date on June 30, 2010 ("Fixed
Rate Period") and thereafter at
a
variable rate equal to LIBOR plus 3.00% per annum, together with Additional Tax
Sums, if any, as provided in
Section
10.5
of the
Indenture, until the principal hereof is paid or duly provided for or made
available for payment;
provided
,
further
, that
any overdue principal, premium, if any, or Additional Tax Sums and any overdue
installment of interest shall bear Additional Interest at a fixed rate equal to
7.34% per annum through the interest payment date on June 30, 2010 and
thereafter at a variable rate equal to LIBOR plus 3.00% 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.
The
amount of interest payable on any Interest Payment Date shall be
computed during the Fixed Rate Period on the basis of a 360-day year of twelve
30-day months, and thereafter, 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.
During an
Event of Default, the Company shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) 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 this Security (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company in connection with (1) any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase plan and (3) the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to such Event of
Default, (b) as a result of an exchange or conversion of any class or series of
the Company's capital stock (or any capital stock of a Subsidiary of the
Company) for any class or series of the Company's capital stock or of any class
or series of the Company's indebtedness for any class or series of the Company's
capital stock, (c) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, or (d) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks
pari
passu
with or
junior to such stock).
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.
Notwithstanding the foregoing, so long as the Holder of this Security is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest (including any overdue installment of interest and Additional Tax Sums,
if any) on this Security will be made at such place and to such account as may
be designated by the Property Trustee.
The
indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Debt, and this Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said
provisions.
Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[FORM
OF REVERSE OF SECURITY]
This
Security is one of a duly authorized issue of securities of the Company (the
"
Securities
"
) issued
under the Junior Subordinated Indenture, dated as of May 13, 2005 (the
"
Indenture
"
),
between the Company and JPMorgan Chase Bank, National Association, as Trustee
(in such capacity, the "
Trustee
," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Debt, the Holders of the
Securities and the holders of the Preferred 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 or in the
Amended
and Restated
Trust
Agreement, dated as of May 13, 2005
(as
modified, amended or supplemented from time to time, the "
Trust
Agreement
"
),
relating to the Hersha Statutory Trust I
(the
"
Trust
"
) among
the Company, as Depositor, the Trustees named therein and the Holders from time
to time of the Trust Securities issued pursuant thereto, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may
be.
The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days' nor more than sixty (60) days' written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to the
Trustee) on or after June 30, 2010 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
addition, upon the occurrence and during the continuation of a Special Event,
the Company may, at its option, upon not less than thirty (30) days' nor more
than sixty (60) days' written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee), redeem this
Security, in whole but not in part, subject to the terms and conditions of
Article
XI
of the
Indenture at a Redemption Price equal to one hundred seven and one half percent
(107.5%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date.
In the
event of redemption of this Security in part only, a new Security or Securities
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof. If less than all the Securities are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than sixty (60) days prior to the Redemption Date by the Trustee from the
Outstanding Securities not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any
Security.
The
Indenture permits, with certain exceptions as therein provided, the Company and
the Trustee at any time to enter into a supplemental indenture or indentures for
the purpose of modifying in any manner the rights and obligations of the Company
and of the Holders of the Securities, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Securities. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities, on behalf of the Holders of all
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium, if any, and
interest, including any Additional Interest (to the extent legally enforceable),
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is restricted to transfers to "Qualified
Purchasers" (as such term is defined in the Investment Company Act of 1940, as
amended), and is registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar and duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Securities, of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The
Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
The
Company and, by its acceptance of this Security or a beneficial interest herein,
the Holder of, and any Person that acquires a beneficial interest in, this
Security agree that, for United States federal, state and local tax purposes, it
is intended that this Security constitute indebtedness.
This
Security shall be construed and enforced in accordance with and governed by the
laws of the State of New York, without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed on
this ____ day of __________, 20__.
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Hersha Hospitality
Limited Partnership
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By:
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Hersha Hospitality Trust,
its General Partner
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By:
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______________________________________________
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Name:
__________________________________________
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Title:
___________________________________________
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(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 OR (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 (B) THE HOLDER WILL
NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) 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,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (
"ERISA"
), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"
) (EACH A
"PLAN"
), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY
ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN
THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE."
(b)
The above
legends shall not be removed from any Security unless there is delivered to the
Company satisfactory evidence, which may include an Opinion of Counsel, as may
be reasonably required to ensure that any future transfers thereof may be made
without restriction under or violation of the provisions of the Securities Act
and other applicable law. Upon provision of such satisfactory evidence, the
Company shall execute and deliver to the Trustee, and the Trustee shall deliver,
upon receipt of a Company Order directing it to do so, a Security that does not
bear the legend.
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.
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Dated:
__________________________________
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JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION
,
not
in its individual capacity, but solely
as
Trustee
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By:
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/s/
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Authorized signatory
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(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.
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.
(a)
The
unpaid principal amount of the Securities shall bear interest at a fixed rate
equal to 7.34% per annum through the interest payment date on June 30, 2010 and
thereafter at a variable rate of LIBOR plus 3.00% per annum until paid or duly
provided for such interest to accrue from the Original Issue Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, and any overdue principal, premium, if any, or Additional Tax Sums
and any overdue installment of interest shall bear Additional Interest at the
rate equal to a fixed rate equal to 7.34% per annum through the interest payment
date on June 30, 2010 and thereafter at a variable rate of LIBOR plus 3.00%
per annum compounded quarterly from the dates such amounts are due until they
are paid or funds for the payment thereof are made available for
payment.
(b)
Interest
and Additional Interest on any Security that is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, except that interest and any Additional Interest payable on the Stated
Maturity (or any date of principal repayment upon early maturity) of the
principal of a Security or on a Redemption Date shall be paid to the Person to
whom principal is paid. The initial payment of interest on any Security that is
issued between a Regular Record Date and the related Interest Payment Date shall
be payable as provided in such Security.
(c)
Any
interest on any Security that is due and payable, but is not timely paid or duly
provided for, on any Interest Payment Date for Securities (herein called
"
Defaulted
Interest
"
) shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
paragraph (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest (a "
Special
Record Date
"
), which
shall be fixed in the following manner. At least thirty (30) days prior to the
date of the proposed payment, the Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest, which shall be
not more than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment and not less than ten (10) days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Security at the address of such
Holder as it appears in the Securities Register not less than ten (10) days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered on such
Special Record Date; or
(ii) The
Company may make payment of any Defaulted Interest 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 (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. Interest payments for the Securities
shall be computed and paid 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.
Notwithstanding the foregoing, so long as the holder of this Security is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest (including any overdue installment of interest and Additional Tax Sums,
if any) on this Security will be made at such place and to such account as may
be designated by the Property Trustee.
(f)
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.
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.
(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 Twenty-Five Million Seven
Hundred Seventy-Four Thousand Dollars ($25,774,000) executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:
(i) a
copy of any Board Resolution relating thereto; and
(ii) an
Opinion of Counsel stating that: (1) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute, and the
Indenture constitutes, valid and legally binding obligations of the Company,
each enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; (2) the Securities have been duly authorized and executed by
the Company and have been delivered to the Trustee for authentication in
accordance with this Indenture; (3) the Securities are not required to be
registered under the Securities Act; and (4) the Indenture is not required to be
qualified under the Trust Indenture Act.
(b)
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. The signature of any of these officers
on the Securities may be manual or facsimile. Securities bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
(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.
(a)
Upon the
election of the Holder after the Original Issue Date, which election need not be
in writing, the Securities owned by such Holder shall be issued in the form of
one or more Global Securities registered in the name of the Depositary or its
nominee. Each Global Security issued under this Indenture shall be registered in
the name of the Depositary designated by the Company for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b)
Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged in
whole or in part for registered Securities, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (i) such
Depositary advises the Trustee and the Company in writing that such Depositary
is no longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Security, and no qualified successor is
appointed by the Company within ninety (90) days of receipt by the Company of
such notice, (ii) such Depositary ceases to be a clearing agency registered
under the Exchange Act and no successor is appointed by the Company within
ninety (90) days after obtaining knowledge of such event, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv) an
Event of Default shall have occurred and be continuing. Upon the occurrence of
any event specified in clause (i), (ii), (iii) or (iv) above, the Trustee shall
notify the Depositary and instruct the Depositary to notify all owners of
beneficial interests in such Global Security of the occurrence of such event and
of the availability of Securities to such owners of beneficial interests
requesting the same. The Trustee may conclusively rely, and be protected in
relying, upon the written identification of the owners of beneficial interests
furnished by the Depositary, and shall not be liable for any delay resulting
from a delay by the Depositary. Upon the issuance of such Securities and the
registration in the Securities Register of such Securities in the names of the
Holders of the beneficial interests therein, the Trustees shall recognize such
holders of beneficial interests as Holders.
(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)
Securities
distributed to holders of Book-Entry Preferred Securities (as defined in the
applicable Trust Agreement) upon the dissolution of the Trust shall be
distributed in the form of one or more Global Securities registered in the name
of a Depositary or its nominee, and deposited with the Securities Registrar, as
custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct). Securities
distributed to holders of Preferred Securities other than Book-Entry Preferred
Securities upon the dissolution of the Trust shall not be issued in the form of
a Global Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
(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 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.
(a)
The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
"
Securities
Register
"
) in
which the registrar and transfer agent with respect to the Securities (the
"
Securities
Registrar
"
),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Securities and of transfers and exchanges of Securities. The
Trustee shall at all times also be the Securities Registrar. The provisions of
Article
VI
shall
apply to the Trustee in its role as Securities Registrar.
(b)
Subject
to compliance with
Section
2.2(b)
, upon
surrender for registration of transfer of any Security at the offices or
agencies of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations of like tenor and aggregate principal amount.
(c)
At the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive.
(d)
All
Securities issued upon any transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
(e)
Every
Security presented or surrendered for transfer or exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing.
(f)
No
service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
(g)
Neither
the Company nor the Trustee shall be required pursuant to the provisions of this
Section
3.5 (g)
: (i) to
issue, register the transfer of or exchange any Security during a period
beginning at the opening of business fifteen (15) days before the day of
selection for redemption of Securities pursuant to
Article
XI
and
ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be
redeemed.
(h)
The
Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration or transfer or exchange. The
Company initially designates the Corporate Trust Office as its office and agency
for such purposes. The Company shall give prompt written notice to the Trustee
and to the Holders of any change in the location of any such office or agency.
(i)
The
Securities may only be transferred to a "Qualified Purchaser" as such term is
defined in Section 2(a)(51) of the Investment Company Act. 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 United States Internal
Revenue Code of 1986, as amended, 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.
(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.
(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.
The
Company, the Trustee and any agent of the Company or the Trustee shall treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any interest on such
Security and for all other purposes whatsoever, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
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.
Each
Security issued hereunder shall provide that the Company and, by its acceptance
or acquisition of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a direct or indirect beneficial interest in, such
Security, intend and agree to treat such Security as indebtedness of the Company
for United States Federal, state 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.
The
Company in issuing the Securities may use "CUSIP" numbers (if then generally in
use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption
and other similar or related materials as a convenience to Holders;
provided
, that
any such notice or other materials may state that no representation is made as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other materials and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of
such numbers.
SATISFACTION
AND DISCHARGE
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
(C)
are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the
Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such purpose
(x) an amount in the currency or currencies in which the Securities are payable,
(y) Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount or (z) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest (including any Additional Interest) to
the date of such deposit (in the case of Securities that have become due and
payable) or to the Stated Maturity (or any date of principal repayment upon
early maturity) or Redemption Date, as the case may be;
(b)
the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c)
the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under
Section
6.6
, the
obligations of the Company to any Authenticating Agent under
Section
6.11
and, if
money shall have been deposited with the Trustee pursuant to subclause (a)(ii)
of this
Section
4.1
, the
obligations of the Trustee under
Section
4.2
and
Section 10.2(e)
shall
survive.
Subject
to the provisions of
Section
10.2(e
), 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 (including the Company acting as its own
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
.
"
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 in
this Indenture and continuance of such default or breach for a period of thirty
(30) days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least twenty five percent (25%) in aggregate principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder;
(d)
the entry
by a court having jurisdiction in the premises of a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of sixty (60) consecutive days;
(e)
the
institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt or insolvent,
or the taking of corporate action by the Company in furtherance of any such
action; or
(f)
the Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence, except in connection with
(1) the distribution of the Securities to holders of the Preferred
Securities in liquidation of their interests in the Trust, (2) the
redemption of all of the outstanding Preferred Securities or (3) certain
mergers, consolidations or amalgamations, each as and to the extent permitted by
the Trust Agreement.
(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), provided, that if, upon
an Event of Default, the Trustee or the Holders of not less than twenty five
percent (25%) in principal amount of the Outstanding Securities fail to declare
the principal of all the Outstanding Securities to be immediately due and
payable, the holders of at least twenty five percent (25%) in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have the
right to make such declaration by a notice in writing to the Property Trustee,
the Company and the Trustee; 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 Indenture Trustee, or the holders of a
majority in aggregate Liquidation Amount of the Preferred Securities, by written
notice to the Property Trustee, the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(i) the
Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A)
all
overdue installments of interest on all Securities,
(B)
any
accrued Additional Interest on all Securities,
(C)
the
principal of and any premium on any Securities that have become due otherwise
than by such declaration of acceleration and interest (including any Additional
Interest) thereon at the rate borne by the Securities, and
(D)
all sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, the Property Trustee and
their 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
;
provided
, that if
the Holders of such Securities fail to annul such declaration and waive such
default, the holders of not less than a majority in aggregate Liquidation Amount
of the Preferred Securities then outstanding shall also have the right to
rescind and annul such declaration and its consequences by written notice to the
Property Trustee, the Company and the Trustee, subject to the satisfaction of
the conditions set forth in paragraph (b) of this
Section
5.2
. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
(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.
In case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative to
the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized hereunder in
order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to first pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under
Section
6.6
.
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.
Any money
or property collected or to be applied by the Trustee with respect to the
Securities pursuant to this
Article
V
shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money or property on account of principal or
any premium or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To
the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under
Section
6.6
;
SECOND:
To the payment of all Senior Debt of the Company if and to the extent required
by
Article
XII
;
THIRD:
Subject to
Article
XII
, to the
payment of the amounts then due and unpaid upon the Securities for principal and
any premium and interest (including any Additional Interest) in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal and any premium and interest (including any
Additional Interest), respectively; and
FOURTH:
The balance, if any, to the Person or Persons entitled thereto.
Subject
to
Section
5.8
, no
Holder of any Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of
a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(a)
such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities;
(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.
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. Any registered holder of the
Preferred Securities shall have the right, upon the occurrence of an Event of
Default described in
Section
5.1(a
) or
Section
5.1(b
), to
institute a suit directly against the Company for enforcement of payment to such
holder of principal of and any premium and interest (including any Additional
Interest) on the Securities having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities held by such holder.
If the
Trustee, any Holder or any holder of Preferred Securities 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, such Holder or such holder of Preferred
Securities, then and in every such case the Company, the Trustee, such Holders
and such holder of Preferred Securities 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, such
Holder and such holder of Preferred Securities shall continue as though no such
proceeding had been instituted.
Except as
otherwise provided in
Section
3.6(f)
, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay
or omission of the Trustee, any Holder of any Securities or any holder of any
Preferred Security 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 and the right and remedy given to the
holders of Preferred Securities by
Section 5.8
may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of Preferred Securities, as the case may
be.
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities (or, as the case may be, the holders of a majority in
aggregate Liquidation Amount of Preferred 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.
(a)
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities or the holders of not less than a majority in aggregate
Liquidation Amount of the Preferred 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 Security (unless such Event of Default has been
cured and the Company has paid to or deposited with the Trustee a sum sufficient
to pay all installments of interest (including any Additional Interest) due and
past due and all principal of and any premium on all Securities due otherwise
than by acceleration), or
(ii) in
respect of a covenant or provision hereof that under
Article
IX
cannot
be modified or amended without the consent of each Holder of any Outstanding
Security.
(b)
Any such
waiver shall be deemed to be on behalf of the Holders of all the Securities or,
in the case of a waiver by holders of Preferred Securities issued by such Trust,
by all holders of Preferred 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.
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.
The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
There
shall at all times be a Trustee hereunder with respect to the Securities. The
Trustee shall be a corporation organized and doing business under the laws of
the United States or of any state thereof, authorized to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or state authority and having
an office within the United States. If such corporation 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 corporation 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
.
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
(or, if applicable, from the holders of at least a majority in aggregate
Liquidation Amount of Preferred 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 or any
holder of Preferred Securities 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 and the holders
of Preferred Securities to replace such other duties and liabilities of the
Trustee.
(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
(or, as the case may be, the holders of a majority in aggregate Liquidation
Amount of Preferred 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)
If at any
time the Trustee hereunder is not the same Person as the Property Trustee under
the Trust Agreement:
(i)
whenever a reference is made herein to the dissolution, termination or
liquidation of the Trust, the Trustee shall be entitled to assume that no such
dissolution, termination, or liquidation has occurred so long as the Securities
are or continue to be registered in the name of such Property Trustee, and the
Trustee shall be charged with notice or knowledge of such dissolution,
termination or liquidation only upon written notice thereof given to the Trustee
by the Depositor under the Trust Agreement; and
(ii) the
Trustee shall not be charged with notice or knowledge that any Person is a
holder of Preferred Securities or Common Securities issued by the Trust or
whether any group of holders of Preferred Securities constitutes any specified
percentage of all outstanding Preferred Securities for any purpose under this
Indenture, unless and until the Trustee is furnished with a list of holders by
such Property Trustee and the aggregate Liquidation Amount of the Preferred
Securities then outstanding. The Trustee may conclusively rely and shall be
protected in relying on such list.
(f)
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 Trust Securities issued by the Trust 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 or to the Company or to any other Person,
cash, property or securities to which such holders of such Trust Securities
shall be entitled or (ii) takes any action or omits to take any action at the
request of the Holder of such Securities. Nothing in this paragraph shall affect
the obligation of any other such Person to hold such payment for the benefit of,
and to pay such amount over to, such holders of Preferred Securities or Common
Securities or their representatives.
Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless such
default shall have been cured or waived;
provided
,
that
except in the case of a default in the payment of the principal of or any
premium or interest on any Securities, the Trustee shall be fully protected in
withholding the notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that withholding the notice is in the interest
of holders of Securities; and
provided
,
further
,
that in
the case of any default of the character specified in
Section
5.1(c)
, no such
notice to Holders shall be given until at least thirty (30) days after the
occurrence thereof. For the purpose of this
Section
6.3
, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
Subject
to the provisions of
Section
6.2
:
(a)
the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b)
if (i) in
performing its duties under this Indenture the Trustee is required to decide
between alternative courses of action, (ii) in construing any of the provisions
of this Indenture the Trustee finds ambiguous or inconsistent with any other
provisions contained herein or (iii) the Trustee is unsure of the application of
any provision of this Indenture, then, except as to any matter as to which the
Holders are entitled to decide under the terms of this Indenture, the Trustee
shall deliver a notice to the Company requesting the Company's written
instruction as to the course of action to be taken and the Trustee shall take
such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided
, that if
the Trustee does not receive such instructions from the Company within ten
Business Days after it has delivered such notice or such reasonably shorter
period of time set forth in such notice the Trustee may, but shall be under no
duty to, take such action, or refrain from taking such action, as the Trustee
shall deem advisable and in the best interests of the Holders, in which event
the Trustee shall have no liability except for its own negligence, bad faith or
willful misconduct;
(c)
any
request or direction of the Company shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(d)
the
Trustee may consult with counsel (which counsel may be counsel to the Trustee,
the Company or any of its Affiliates, and may include any of its employees) and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e)
the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
or any holder of Preferred Securities pursuant to this Indenture, unless such
Holders (or such holders of Preferred Securities) 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,
upon reasonable notice, to examine the books, records and premises of the
Company, personally or by agent or attorney during the Company's regular
business hours;
(g)
the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(h)
whenever
in the administration of this Indenture the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking any
other action with respect to enforcing any remedy or right hereunder, the
Trustees (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;
(l)
the
Trustee shall not be charged with knowledge of any Event of Default unless
either (i) a Responsible Officer of the Trustee shall have actual knowledge or
(ii) the Trustee shall have received written notice thereof from the Company or
a Holder; and
(m)
in the
event that the Trustee is also acting as Paying Agent, Authenticating Agent 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.
The
Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other
agent.
(a)
The
Company agrees:
(i) to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder in such amounts as the Company and the Trustee shall
agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(ii) to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith or
willful misconduct; and
(iii) to
the fullest extent permitted by applicable law, to indemnify the Trustee and its
Affiliates, and their officers, directors, shareholders, agents, representatives
and employees for, and to hold them harmless against, any loss, damage,
liability, tax (other than income, franchise or other taxes imposed on amounts
paid pursuant to (i) or (ii) hereof), penalty, expense or claim of any kind or
nature whatsoever incurred without negligence, bad faith or willful misconduct
on its part arising out of or in connection with the acceptance or
administration of this trust or the performance of the Trustee's duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
(b)
To secure
the Company's payment obligations in this
Section
6.6
, the
Company hereby grants and pledges to the Trustee and the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee, other than money or property held in trust to pay principal and
interest on particular Securities. Such lien shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the
Trustee.
(c)
The
obligations of the Company under this
Section
6.6
shall
survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee.
(d)
In no
event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(e)
In no
event shall the Trustee be liable for any failure or delay in the performance of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
(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)
Unless an
Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution. If an Event of Default
shall have occurred and be continuing, the Trustee may be removed by Act of the
Holders of 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, at a time when no Event of
Default shall have occurred and be continuing, the Company, by a Board
Resolution, 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 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, at a time when an Event of
Default shall have occurred and be continuing, the Holders, by Act of 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 Company or 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
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.
(e)
The
Company shall give notice to all Holders in the manner provided in
Section 1.6
of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
(a)
In case
of the appointment hereunder of a successor Trustee, each successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b)
Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a) of
this
Section
6.8
.
(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
.
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.
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.
(a)
The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section
3.6
, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, or of any State or Territory thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this
Section 6.11
the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this
Section
6.11
, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this
Section
6.11
.
(b)
Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such Person shall be otherwise eligible under this
Section
6.11
, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
(c)
An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this
Section
6.11
, the
Trustee may appoint a successor Authenticating Agent eligible under the
provisions of this
Section
6.11
, which
shall be acceptable to the Company, and shall give notice of such appointment to
all Holders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
(d)
The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this
Section
6.11
in such
amounts as the Company and the Authenticating Agent shall agree from time to
time.
(e)
If an
appointment of an Authenticating Agent is made pursuant to this
Section 6.11
, the
Securities may have endorsed thereon, an alternative certificate of
authentication in substantially the following form:
This is
one of the Securities referred to in the within mentioned
Indenture.
|
Dated:
__________________________________
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JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION
,
as Trustee
|
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By:
|
__________________________________
|
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Authenticating Agent
|
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By:
|
__________________________________
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Authorized Signatory
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HOLDER'S
LISTS AND REPORTS BY COMPANY
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.
(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.
(a)
The
Company shall furnish to the Holders and to prospective purchasers of
Securities, upon their request, the information required to be furnished
pursuant to Rule 144A(d)(4) under the Securities Act. The delivery
requirement set forth in the preceding sentence may be satisfied by compliance
with
Section
7.3(b)
hereof.
(b)
The
Company shall furnish to each of (i) the Trustee, (ii) the Holders and to
subsequent holders of Securities, (iii) Cohen Bros. Securities, LLC, 1818 Market
Street, 28
th
Floor,
Philadelphia, Pennsylvania 19103, Attn: Mitchell Kahn or such other address as
designated by Cohen Bros. Securities, LLC) and (iv) any beneficial owner of the
Securities reasonably identified to the Company (which identification may be
made either by such beneficial owner or by Cohen Bros. Securities, LLC), a duly
completed and executed certificate substantially and substantively in the form
attached hereto as
Exhibit
A
,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Company not later than
forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Company and not later than ninety (90) days after the
end of each fiscal year of the Company. The delivery requirements under this
Section
7.3(b)
may be
satisfied by compliance with Section 8.16(b) of the Trust
Agreement.
(c)
If the
Company 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 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 of its financial statements to the Trustee in compliance with the
provisions of Section 314(a) of the Trust Indenture Act, if applicable. The
Trustee shall have no duty to search for or obtain any electronic or other
filings that the Company makes with the Commission, regardless of whether such
filings are periodic, supplemental or otherwise. Delivery of reports,
information and documents to the Trustee pursuant to this
Section
7.3(c)
shall be
solely for purposes of compliance with this
Section
7.3(c)
and, if
applicable, with Section 314(a) of the Trust Indenture Act. The Trustee's
receipt of such reports, information and documents shall not constitute notice
to it of the content thereof or any matter determinable from the content
thereof, including the Company's compliance with any of its covenants hereunder,
as to which the Trustee is entitled to rely upon Officers'
Certificates.
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a)
if the
Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
the entity formed by such consolidation or into which the Company is merged or
the Person that acquires by conveyance or transfer, or that leases, the
properties and assets of the Company substantially as an entirety shall be an
entity organized and existing under the laws of the United States of America or
any State or Territory thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including any
Additional Interest) on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
(b)
immediately
after giving effect to such transaction, no Event of Default, and no event that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and
(c)
the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, any such supplemental indenture comply with this
Article
VIII
and that
all conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee may rely upon such Officers' Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this
Section
8.1
.
(a)
Upon any
consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with
Section
8.1
and the
execution and delivery to the Trustee of the supplemental indenture described in
Section
8.1(a)
, the
successor entity formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and in the event of any such conveyance or
transfer, following the execution and delivery of such supplemental indenture,
the Company shall be discharged from all obligations and covenants under the
Indenture and the Securities.
(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.
Without
the consent of any Holders, the Company, 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:
(a)
to
evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the Securities;
or
(b)
to cure
any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the other provisions of this
Indenture,
provided
, that
such action pursuant to this clause (b) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities; or
(c)
to add to
the covenants, restrictions or obligations of the Company or to add to the
Events of Default,
provided
, that
such action pursuant to this clause (c) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities; or
(d)
to
modify, eliminate or add to any provisions of the Indenture or the Securities to
such extent as shall be necessary to ensure that the Securities are treated as
indebtedness of the Company for United States Federal income tax purposes,
provided
, that
such action pursuant to this clause (d) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities.
(a)
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
,
Section
5.13
or
Section 10.7
, except
to increase any percentage in aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is required for any reason, or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security;
provided
,
further
, that,
so long as any Preferred Securities remain outstanding, no amendment under this
Section
9.2
shall be
effective until the holders of a majority in Liquidation Amount of the Preferred
Securities shall have consented to such amendment;
provided
,
further
, that if
the consent of the Holder of each Outstanding Security is required for any
amendment under this Indenture, such amendment shall not be effective until the
holder of each Outstanding Preferred Security shall have consented to such
amendment.
(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.
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.
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 and every holder of Preferred Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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.
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.
(a)
If the
Company shall at any time act as its own Paying Agent with respect to the
Securities, it will, on or before each due date of the principal of and any
premium or interest (including any Additional Interest) on the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium or interest (including
Additional Interest) so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee in writing of its failure so to act.
(b)
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 a
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 so to
act.
(c)
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.
(d)
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(e)
Any money
deposited with the Trustee or any Paying Agent, or then held by the Company in
trust 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.
The
Company shall deliver to the Trustee, within one hundred and twenty (120) days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate covering the preceding calendar year, stating whether
or not to the knowledge of the signers thereof the Company is in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of notice
provided hereunder), and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge. The
delivery requirements of this
Section
10.3
may be
satisfied by compliance with Section 8.16(a) of the Trust
Agreement.
(a)
The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR in
respect of each Interest Payment Date in accordance with the terms of
Schedule
A
(the
"
Calculation
Agent
"). The
Company has initially appointed the Property Trustee as Calculation Agent for
purposes of determining LIBOR for each Interest Payment Date. The Calculation
Agent may be removed by the Company at any time. So long as the Property Trustee
holds any of the Securities, the Calculation Agent shall be the Property
Trustee, except as described in the immediately preceding sentence. If the
Calculation Agent is unable or unwilling to act as such or is removed by the
Company, the Company will promptly appoint as a replacement Calculation Agent
the London office of a leading bank which is engaged in transactions in
Eurodollar deposits in the international Eurodollar market and which does not
control or is not controlled by or under common control with the Company or its
Affiliates. The Calculation Agent may not resign its duties without a successor
having been duly appointed.
(b)
The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date (as defined in
Schedule
A
), but in
no event later than 11:00 a.m. (London time) on the Business Day immediately
following each LIBOR Determination Date, the Calculation Agent will calculate
the interest rate (the Interest Payment shall be rounded to the nearest cent,
with half a cent being rounded upwards) for the related Interest Payment Date,
and will communicate such rate and amount to the Company, the Trustee, each
Paying Agent and the Depositary. The Calculation Agent will also specify to the
Company the quotations upon which the foregoing rates and amounts are based and,
in any event, the Calculation Agent shall notify the Company before 5:00 p.m.
(London time) on each LIBOR Determination Date that either: (i) it has
determined or is in the process of determining the foregoing rates and amounts
or (ii) it has not determined and is not in the process of determining the
foregoing rates and amounts, together with its reasons therefor. The Calculation
Agent's determination of the foregoing rates and amounts for any Interest
Payment Date will (in the absence of manifest error) be final and binding upon
all parties. For the sole purpose of calculating the interest rate for the
Securities, "Business Day" shall be defined as any day on which dealings in
deposits in Dollars are transacted in the London interbank market.
So long
as no Event of Default has occurred and is continuing, if (a) the Trust is the
Holder of all of the Outstanding Securities and (b) a Tax Event described in
clause (i) or (iii) in the definition of Tax Event in
Section
1.1
hereof
has occurred and is continuing, the Company shall pay to the Trust (and its
permitted successors or assigns under the related Trust Agreement) for so long
as the Trust (or its permitted successor or assignee) is the registered holder
of the Outstanding Securities, such amounts as may be necessary in order that
the amount of Distributions (including any Additional Interest Amount (as
defined in the Trust Agreement)) then due and payable by the Trust on the
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (additional such amounts payable by
the Company to the Trust, the "
Additional
Tax Sums
")
.
Whenever
in this Indenture or the Securities there is a reference in any context to the
payment of principal of or interest on the Securities, such mention shall be
deemed to include mention of the payments of the Additional Tax Sums provided
for in this
Section
10.5
to the
extent that, in such context, Additional Tax Sums are, were or would be payable
in respect thereof pursuant to the provisions of this
Section
10.5
and
express mention of the payment of Additional Tax Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Tax Sums in
those provisions hereof where such express mention is not made.
(a)
The
Company covenants and agrees with each Holder of Securities that if an Event of
Default shall have occurred and be continuing, it shall not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's capital stock
(for the avoidance of doubt, the term "capital stock" includes both common stock
and preferred stock of the Company), (ii) vote in favor of or permit or
otherwise allow any of its subsidiaries to declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to or otherwise retire, any shares of such subsidiaries preferred
stock (for the avoidance of doubt, whether such preferred stock is 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 (other than (A)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to such Event of Default, (B) as a result of an exchange or conversion of any
class or series of the Company's capital stock (or any capital stock of a
Subsidiary of the Company) for any class or series of the Company's capital
stock or of any class or series of the Company's indebtedness for any class or
series of the Company's capital stock, (C) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
or (D) any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being
paid or ranks
pari
passu
with or
junior to such stock).
(b)
The
Company also covenants with each Holder of Securities (i) to hold, directly or
indirectly, one hundred percent (100%) of the Common Securities of the Trust,
provided
,
that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) as holder of such Common Securities,
not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in
connection with a distribution of the Securities to the holders of the Preferred
Securities in liquidation of the Trust or (B) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iii) to use its reasonable commercial efforts, consistent with the terms and
provisions of the Trust Agreement, to cause the Trust to continue to be taxable
as a grantor trust and not as a corporation for United States Federal income tax
purposes.
The
Company may omit in any particular instance to comply with any covenant or
condition contained in
Section
10.6
if,
before or after the time for such compliance, the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities shall, by Act of
such Holders, and at least a majority of the aggregate Liquidation Amount of the
Preferred Securities then outstanding, by consent of such holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
The
Company will treat the Securities as indebtedness, and the amounts, other than
payments of principal, payable in respect of the principal amount of such
Securities as interest, for all U.S. federal income tax purposes. All payments
in respect of the Securities will be made free and clear of U.S. withholding tax
to any beneficial owner thereof that has provided an Internal Revenue Service
Form W-9 or W-8BEN (or any substitute or successor form) establishing its U.S.
or non-U.S. status for U.S. federal income tax purposes, or any other applicable
form establishing a complete exemption from U.S. withholding tax.
The
Company may, at its option, on any Interest Payment Date, on or after June 30,
2010, 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 interest, including any Additional
Interest, through but excluding the date fixed as the Redemption Date (the
"
Optional
Redemption Price
").
Prior to
June 30, 2010, upon the occurrence and during the continuation of a Special
Event, the Company may, at its option, redeem the Securities, in whole but not
in part, at a Redemption Price equal to one hundred seven and one half percent
(107.5%) of the principal amount thereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date (the "
Special
Redemption Price
").
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 forty-five (45) days
and not more than seventy-five (75) days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee and the
Property Trustee under the Trust Agreement in writing of such date and of the
principal amount of the Securities to be redeemed and provide the additional
information required to be included in the notice or notices contemplated by
Section
11.5
. In the
case of any redemption of Securities, in whole or in part, (a) prior to the
expiration of any restriction on such redemption provided in this Indenture or
the Securities or (b) pursuant to an election of the Company which is subject to
a condition specified in this Indenture or the Securities, the Company shall
furnish the Trustee with an Officers' Certificate and an Opinion of Counsel
evidencing compliance with such restriction or condition.
(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.
(a)
Notice of
redemption shall be given not later than the thirtieth (30
th
) day,
and not earlier than the sixtieth (60
th
) day,
prior to the Redemption Date to each Holder of Securities to be redeemed, in
whole or in part, (unless a shorter notice shall be satisfactory to the Property
Trustee under the related Trust Agreement).
(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 particular Securities to be redeemed;
(iv) that
on the Redemption Date, the Redemption Price will become due and payable upon
each such Security or portion thereof, and that any interest (including any
Additional Interest) on such Security or such portion, as the case may be, shall
cease to accrue on and after said date; and
(v) the
place or places where such Securities are to be surrendered for payment of the
Redemption Price.
(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.
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 (or if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in
Section
10.2
) 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.
(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.
SUBORDINATION
OF SECURITIES
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.
(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.
(b)
In the
event of a bankruptcy, insolvency or other proceeding described in
clause (d) or (e) of the definition of Event of Default (each such event,
if any, herein sometimes referred to as a "
Proceeding
"
), all
Senior Debt (including any interest thereon accruing after the commencement of
any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of Senior Debt in
accordance with the priorities then existing among such holders until all Senior
Debt (including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid in full.
(c)
In the
event of any Proceeding, after payment in full of all sums owing with respect to
Senior Debt, the Holders of the Securities, together with the holders of any
obligations of the Company ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at the
time due and owing on account of unpaid principal of and any premium and
interest (including any Additional Interest) on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Securities and such other obligations. If,
notwithstanding the foregoing, any payment or distribution of any character or
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 principal amount of the Senior Debt at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
(e)
The
provisions of this
Section
12.2
shall
not impair any rights, interests, remedies or powers of any secured creditor of
the Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
(f)
The
securing of any obligations of the Company, otherwise ranking on a parity with
the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking on
a parity with the Securities or ranking junior to the Securities.
Nothing
contained in this
Article
XII
or
elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Company, at any time, except during the pendency of the conditions described in
paragraph (a) of
Section
12.2
or of
any Proceeding referred to in
Section 12.2
, from
making payments at any time of principal of and any premium or interest
(including any Additional Interest) on the Securities or (b) the application by
the Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of and any premium or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge (in accordance with
Section
12.8
) that
such payment would have been prohibited by the provisions of this
Article
XII
, except
as provided in
Section
12.8
.
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.
The
provisions of this
Article
XII
are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Senior Debt on the
other hand. Nothing contained in this
Article
XII
or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of and any premium and interest
(including any Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms, (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of the
Company other than their rights in relation to the holders of Senior Debt or (c)
prevent the Trustee or the Holder of any Security (or to the extent expressly
provided herein, the holder of any Preferred 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.
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.
(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.
(a)
The
Company shall give prompt written notice to a Responsible Officer of the Trustee
of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this
Article
XII
or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder of Senior Debt or from any trustee, agent or
representative therefor;
provided
,
that if
the Trustee shall not have received the notice provided for in this
Section
12.8
at least
two Business Days prior to the date upon which by the terms hereof any monies
may become payable for any purpose (including, the payment of the principal of
and any premium on or interest (including any Additional Interest) on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
(b)
The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee, agent, representative or attorney-in-fact therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this
Article
XII
, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this
Article
XII
, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
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
.
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.
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.
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;
provided
,
that
Sections
12.8
and
12.11
shall
not apply to the Company or any Affiliate of the Company if the Company or such
Affiliate acts as Paying Agent.
* * *
*
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.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
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Hersha Hospitality
Limited Partnership
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By:
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Hersha Hospitality Trust, its General
Partner
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By:
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_______________________________________________
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Name:
__________________________________________
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Title:
__________________________________________
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JPMorgan Chase Bank, National Association,
as
Trustee
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By:
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_______________________________________________
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Name: __________________________________________
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Title: ___________________________________________
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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 an Interest Payment Date
(except with respect to the first interest payment period, such date shall be a
date that is two business days prior to May 13, 2005)
(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. 1991 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.
Exhibit A
The
undersigned, the [Chief Financial Officer/Treasurer/Assistant Treasurer/
Secretary/ Assistant Secretary, Chairman/Chief Executive Officer/President/Vice
President] of Hersha Hospitality Trust ("HHT"), the general partner and Hersha
Hospitality Limited Partnership (the "Company") hereby certifies, pursuant to
Section 7.3(b) of the Junior Subordinated Indenture, dated as of May 13, 2005
(the "Indenture"), between the Company and JPMorgan Chase Bank, National
Association, as trustee, that, as of [date], [20__]:
[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 HHT and its consolidated subsidiaries for the three
years ended [date], 20__.]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company 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 HHT and its consolidated subsidiaries, and the results of operations and
changes in financial condition as of the date, and for the [quarter] [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).
Exhibit
A
IN
WITNESS WHEREOF, the undersigned has executed this Officer's Financial
Certificate as of this _____ day of _____________, 20__.
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By:
________________________________________
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Name:
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________________________________________
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Hersha
Hospitality Limited Partnership
510
Walnut Street, 9th Floor
Philadelphia,
PA 19106
215-238-1046
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2
AMENDED
AND RESTATED TRUST AGREEMENT
among
HERSHA
HOSPITALITY LIMITED PARTNERSHIP
,
as
Depositor
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION
as
Property Trustee
CHASE
BANK USA, NATIONAL ASSOCIATION
,
as
Delaware Trustee
and
THE
ADMINISTRATIVE TRUSTEES NAMED HEREIN
as
Administrative Trustees
________________
Dated as
of
May 13, 2005
________________
Hersha
Statutory Trust I
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Page
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ARTICLE
I.
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DEFINED
TERMS
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Section
1.1.
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Definitions
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1
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ARTICLE
II.
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THE
TRUST
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Section
2.1.
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Name
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11
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Section
2.2.
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Office
of the Delaware Trustee; Principal Place of Business
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11
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Section
2.3.
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Initial
Contribution of Trust Property; Fees, Costs and Expenses
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11
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Section
2.4.
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Purposes
of Trust
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12
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Section
2.5.
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Authorization
to Enter into Certain Transactions
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12
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Section
2.6.
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Assets
of Trust
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15
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Section
2.7.
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Title
to Trust Property
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15
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ARTICLE
III.
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PAYMENT
ACCOUNT; PAYING AGENTS
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Section
3.1.
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Payment
Account
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15
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Section
3.2.
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Appointment
of Paying Agents
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15
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ARTICLE
IV.
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DISTRIBUTIONS;
REDEMPTION
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Section
4.1.
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Distributions
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16
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Section
4.2.
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Redemption
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17
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Section
4.3.
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Subordination
of Common Securities
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20
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Section
4.4.
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Payment
Procedures
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21
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Section
4.5.
|
Withholding
Tax
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21
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Section
4.6.
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Tax
Returns and Other Reports
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21
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Section
4.7.
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Payment
of Taxes, Duties, Etc. of the Trust
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22
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Section
4.8.
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Payments
under Indenture or Pursuant to Direct Actions
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22
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Section
4.9.
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Exchanges
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22
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Section
4.10.
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Calculation
Agent
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23
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Section
4.11.
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Certain
Accounting Matters
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23
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ARTICLE
V.
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SECURITIES
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Section
5.1.
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Initial
Ownership
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24
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TABLE
OF CONTENTS
(continued)
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Page
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Section
5.2.
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Authorized
Trust Securities
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24
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Section
5.3.
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Issuance
of the Common Securities; Subscription and Purchase of
Notes
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25
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Section
5.4.
|
The
Securities Certificates
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25
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Section
5.5.
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Rights
of Holders
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26
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Section
5.6.
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Book-Entry
Preferred Securities
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26
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Section
5.7.
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Registration
of Transfer and Exchange of Preferred Securities
Certificates
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28
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Section
5.8.
|
Mutilated,
Destroyed, Lost or Stolen Securities Certificates
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29
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Section
5.9.
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Persons
Deemed Holders
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30
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Section
5.10.
|
Cancellation
|
30
|
|
Section
5.11.
|
Ownership
of Common Securities by Depositor
|
31
|
|
Section
5.12.
|
Restricted
Legends
|
31
|
|
Section
5.13.
|
Form
of Certificate of Authentication
|
33
|
|
|
|
|
|
|
ARTICLE
VI.
|
|
|
|
MEETINGS;
VOTING; ACTS OF HOLDERS
|
|
|
|
|
|
|
Section
6.1.
|
Notice
of Meetings
|
34
|
|
Section
6.2.
|
Meetings
of Holders of the Preferred Securities
|
34
|
|
Section
6.3.
|
Voting
Rights
|
34
|
|
Section
6.4.
|
Proxies,
Etc
|
34
|
|
Section
6.5.
|
Holder
Action by Written Consent
|
35
|
|
Section
6.6.
|
Record
Date for Voting and Other Purposes
|
35
|
|
Section
6.7.
|
Acts
of Holders
|
35
|
|
Section
6.8.
|
Inspection
of Records
|
36
|
|
Section
6.9.
|
Limitations
on Voting Rights
|
36
|
|
Section
6.10.
|
Acceleration
of Maturity; Rescission of Annulment; Waivers of Past
Defaults
|
37
|
|
|
|
|
|
|
ARTICLE
VII.
|
|
|
|
REPRESENTATIONS
AND WARRANTIES
|
|
|
|
|
|
|
Section
7.1.
|
Representations
and Warranties of the Property Trustee and the Delaware
Trustee
|
39
|
|
Section
7.2.
|
Representations
and Warranties of Depositor
|
40
|
TABLE
OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
|
ARTICLE
VIII.
|
|
|
|
THE
TRUSTEES
|
|
|
|
|
|
|
Section
8.1.
|
Number
of Trustees
|
42
|
|
Section
8.2.
|
Property
Trustee Required
|
42
|
|
Section
8.3.
|
Delaware
Trustee Required
|
42
|
|
Section
8.4.
|
Appointment
of Administrative Trustees
|
43
|
|
Section
8.5.
|
Duties
and Responsibilities of the Trustees
|
43
|
|
Section
8.6.
|
Notices
of Defaults and Extensions
|
45
|
|
Section
8.7.
|
Certain
Rights of Property Trustee
|
45
|
|
Section
8.8.
|
Delegation
of Power
|
47
|
|
Section
8.9.
|
May
Hold Securities
|
48
|
|
Section
8.10.
|
Compensation;
Reimbursement; Indemnity
|
48
|
|
Section
8.11.
|
Resignation
and Removal; Appointment of Successor
|
49
|
|
Section
8.12.
|
Acceptance
of Appointment by Successor
|
50
|
|
Section
8.13.
|
Merger,
Conversion, Consolidation or Succession to Business
|
50
|
|
Section
8.14.
|
Not
Responsible for Recitals, Issuance of Securities, or
Representations
|
51
|
|
Section
8.15.
|
Property
Trustee May File Proofs of Claim
|
51
|
|
Section
8.16.
|
Reports
to the Property Trustee
|
52
|
|
|
|
|
|
|
ARTICLE
IX.
|
|
|
|
TERMINATION,
LIQUIDATION AND MERGER
|
|
|
|
|
|
|
Section
9.1.
|
Dissolution
Upon Expiration Date
|
53
|
|
Section
9.2.
|
Early
Termination
|
53
|
|
Section
9.3.
|
Termination
|
53
|
|
Section
9.4.
|
Liquidation
|
54
|
|
Section
9.5.
|
Mergers,
Consolidations, Amalgamations or Replacements of Trust
|
55
|
|
|
|
|
|
|
ARTICLE
X.
|
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
|
|
|
|
Section
10.1.
|
Limitation
of Rights of Holders
|
56
|
|
Section
10.2.
|
Agreed
Tax Treatment of Trust and Trust Securities
|
57
|
|
Section
10.3.
|
Amendment
|
57
|
TABLE
OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
Section
10.4.
|
Separability
|
58
|
|
Section
10.5.
|
Governing
Law
|
58
|
|
Section
10.6.
|
Successors
|
59
|
|
Section
10.7.
|
Headings
|
59
|
|
Section
10.8.
|
Reports,
Notices and Demands
|
59
|
|
Section
10.9.
|
Agreement
Not to Petition
|
60
|
|
Section
10.10.
|
Counterparts
|
60
|
|
|
Page
|
|
|
|
|
Exhibit
A
|
Certificate
of Trust of Hersha Statutory Trust I
|
|
Exhibit
B
|
Form
of Common Securities Certificate
|
|
Exhibit
C
|
Form
of Preferred Securities Certificate
|
|
Exhibit
D
|
Reserved
|
|
Exhibit
E
|
Form
of Transferor Certificate
|
|
Exhibit
F
|
Form
of Officer's Financial Certificate
|
|
|
|
|
Schedule
A
|
Determination
of LIBOR
|
THIS
AMENDED AND RESTATED TRUST AGREEMENT
, dated
as of May 13, 2005, among (i) Hersha Hospitality Limited Partnership, a
Virginia limited partnership (including any successors or permitted assigns, the
"
Depositor
"
), (ii)
JPMorgan Chase Bank, National Association, as property trustee (in such
capacity, the "
Property
Trustee
"
)
, (iii)
Chase Bank USA, National Association, a national banking association, as
Delaware trustee (in such capacity, the "
Delaware
Trustee
"
), (iv)
Jay Shah and Ashish Parikh, each an individual whose address is c/o 510 Walnut
Street, 9th Floor
,
Philadelphia,
PA 19106 as administrative trustees (in such capacities, each an "
Administrative
Trustee
"
and,
collectively, the "
Administrative
Trustees
"
and,
together with the Property Trustee and the Delaware Trustee, the
"
Trustees"
) and
(v) the several Holders, as hereinafter defined.
WHERESAS,
the
Depositor and the Delaware Trustee have heretofore created a Delaware statutory
trust pursuant to the Delaware Statutory Trust Act by entering into a Trust
Agreement, dated as of May 11, 2005 (the
"
Original
Trust Agreement"
), and by
executing and filing with the Secretary of State of the State of Delaware the
Certificate of Trust, substantially in the form attached as
Exhibit A
;
and
WHEREAS,
the
Depositor and the Delaware Trustee desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in and to the
Notes;
NOW,
THEREFORE,
in
consideration of the agreements and obligations set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties and for the
benefit of the Holders, hereby amends and restates the Original Trust Agreement
in its entirety and agrees as follows:
ARTICLE
I.
SECTION
1.1.
Definitions
.
For all
purposes of this Trust Agreement, 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 used but not defined herein have the meanings assigned to them
in accordance with United States generally accepted accounting
principles;
(d)
unless
the context otherwise requires, any reference to an "Article", a "Section", a
"Schedule" or an "Exhibit" refers to an Article, a Section, a Schedule or
an Exhibit, as the case may be, of or to this Trust Agreement;
(e)
the words
"hereby", "herein", "hereof" and "hereunder" and other words of similar import
refer to this Trust Agreement 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
"
has the
meaning specified in
Section 6.7
.
"
Additional
Interest
"
has the
meaning specified in Section 1.1 of the Indenture.
"
Additional
Interest Amount
"
means,
with respect to Trust Securities of a given Liquidation Amount and/or a given
period, the amount of Additional Interest paid by the Depositor on a Like Amount
of Notes for such period.
"
Additional
Taxes
"
has the
meaning specified in Section 1.1 of the Indenture.
"
Additional
Tax Sums
"
has the
meaning specified in Section 10.5 of the Indenture.
"
Administrative
Trustee
"
means
each of the Persons identified as an
"
Administrative
Trustee"
in the
preamble to this Trust Agreement, solely in each such Person's capacity as
Administrative Trustee of the Trust and not in such Person's individual
capacity, or any successor Administrative Trustee appointed as herein
provided.
"
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 Book-Entry Preferred
Security, the rules and procedures of the Depositary for such Book-Entry
Preferred Security, in each case to the extent applicable to such transaction
and as in effect from time to time.
"Bankruptcy
Event"
means,
with respect to any Person:
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(a)
the entry of a decree or order by a court having jurisdiction in the
premises (i) judging such Person a bankrupt or insolvent, (ii) approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law, (iii) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such Person
or of any substantial part of its property or (iv) ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of sixty (60) consecutive days;
or
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(b)
the institution by such Person of proceedings to be adjudicated a bankrupt
or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it 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 any such petition or to the
appointment of a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt or insolvent, or the taking of corporate action by such Person in
furtherance of any such action.
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"Bankruptcy
Laws"
means
all Federal and state bankruptcy, insolvency, reorganization and other similar
laws, including the United States Bankruptcy Code.
"Book-Entry
Preferred Security"
means a
Preferred Security, the ownership and transfers of which shall be made through
book entries by a Depositary.
"Business
Day"
means a
day other than (a) a Saturday or Sunday, (b) 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 (c) a day on which the Corporate Trust
Office is closed for business.
"Calculation
Agent"
has the
meaning specified in
Section
4.10
.
"Closing
Date"
has the
meaning specified in the Purchase Agreement.
"Code"
means
the United States Internal Revenue Code of 1986, as amended.
"Commission"
means
the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this
Trust Agreement such Commission is not existing and performing the duties
assigned to it, then the body performing such duties at such time.
"Common
Securities Certificate"
means a
certificate evidencing ownership of Common Securities, substantially in the form
attached as
Exhibit B
.
"Common
Security"
means an
undivided beneficial interest in the assets of the Trust, having a Liquidation
Amount of $1,000 and having the rights provided therefor in this Trust
Agreement.
"Common
Securities Subscription Agreement"
means
the agreement of even date herewith by and between the Depositor and the Trust
pertaining to the sale and purchase of the Common Securities.
"Corporate
Trust Office"
means
the principal office of the Property Trustee at which any particular time its
corporate trust business shall be administered, which office at the date of this
Trust Agreement is located at 600 Travis, 50
th
Floor,
Houston, Texas 77002, Attention: Institutional Trust Services—Hersha Statutory
Trust I.
"Definitive
Preferred Securities Certificates"
means
Preferred Securities issued in certificated, fully registered form that are not
Global Preferred Securities.
"Delaware
Statutory
Trust
Act"
means
Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801
et
seq.
, or any
successor statute thereto, in each case as amended from time to
time.
"Delaware
Trustee"
means
the Person identified as the
"
Delaware
Trustee"
in the
preamble to this Trust Agreement, solely in its capacity as Delaware Trustee of
the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor Delaware Trustee appointed as herein
provided.
"Depositary"
means an organization registered as a clearing agency under the Exchange Act
that is designated as Depositary by the Depositor or any successor thereto. DTC
will be the initial Depositary.
"Depositary
Participant"
means a broker, dealer, bank, other financial institution or other Person for
whom from time to time the Depositary effects book-entry transfers and pledges
of securities deposited with the Depositary.
"Depositor"
has the meaning specified in the preamble to this Trust Agreement and any
successors and permitted assigns.
"Depositor
Affiliate"
has the meaning specified in
Section 4.9
.
"Distribution
Date"
has the
meaning specified in
Section 4.1(a)(i)
.
"Distributions"
means
amounts payable in respect of the Trust Securities as provided in
Section 4.1.
"DTC"
means The Depository Trust Company, a New York corporation, or any successor
thereto.
"Early
Termination Event"
has the
meaning specified in
Section 9.2
.
"Event
of Default"
means
any one of the following events (whatever the reason for such event 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):
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(a)
the occurrence of a Note Event of Default; or
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(b)
default by the Trust in the payment of any Distribution when it becomes
due and payable, and continuation of such default for a period of thirty
(30) days; or
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(c)
default by the Trust in the payment of any Redemption Price of any Trust
Security when it becomes due and payable; or
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(d)
default in the performance, or breach, in any material respect of any
covenant or warranty of the Trustees in this Trust Agreement (other than
those specified in clause (b) or (c) above) and continuation of such
default or breach for a period of thirty (30) days after there has been
given, by registered or certified mail, to the Trustees and to the
Depositor by the Holders of at least twenty five percent (25%) in
aggregate Liquidation Amount of the Outstanding Preferred 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
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(e)
the occurrence of a Bankruptcy Event with respect to the Property Trustee
if a successor Property Trustee has not been appointed within ninety (90)
days thereof.
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"Exchange
Act"
means
the Securities Exchange Act of 1934, and any successor statute thereto, in each
case as amended from time to time.
"Expiration
Date"
has the
meaning specified in
Section 9.1
.
"Fiscal
Year"
shall be
the fiscal year of the Trust, which shall be the calendar year, or such other
period as is required by the Code.
"Fixed
Rate Period"
has the meaning specified in the Indenture.
"Global
Preferred Security"
means a Preferred Securities Certificate evidencing ownership of Book-Entry
Preferred Securities.
"HHT"
means Hersha Hospitality Trust, a Maryland real estate investment trust and the
general partner of the Depositor.
"Holder"
means a
Person in whose name a Trust Security or Trust Securities are registered in the
Securities Register; any such Person shall be deemed to be a beneficial owner
within the meaning of the Delaware Statutory Trust Act.
"Indemnified
Person"
has the
meaning specified in
Section
8.10(c)
.
"Indenture"
means
the Junior Subordinated Indenture executed and delivered by the Depositor and
the Note Trustee contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Notes.
"
Indenture
Redemption Price
" means
the Optional Note Redemption Price or the Special Note Redemption Price, as
applicable.
"Initial
Purchaser"
shall
mean the initial purchaser of the Preferred Securities.
"
Interest
Payment Date
" has the
meaning specified in Section 1.1 of the Indenture.
"Investment
Company Act"
means
the Investment Company Act of 1940, or any successor statute thereto, in each
case as amended from time to time.
"
Investment
Company Event
" has the
meaning specified in Section 1.1 of the Indenture.
"Junior
Subordinated Note Purchase Agreement"
means the
agreement of even date herewith by and between the Depositor and the Trust
pertaining to the issuance and purchase of the Notes.
"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
.
"Lien"
means
any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse
ownership interest, hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever.
"Like
Amount"
means
(a) with respect to a redemption of any Trust Securities, Trust Securities
having a Liquidation Amount equal to the principal amount of Notes to be
contemporaneously redeemed or paid at maturity in accordance with the Indenture,
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, (b) with respect to a distribution of Notes to Holders of Trust
Securities in connection with a dissolution of the Trust, Notes having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Notes are distributed and (c) with respect to any
distribution of Additional Interest Amounts to Holders of Trust Securities,
Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
"Liquidation
Amount"
means
the stated amount of $1,000 per Trust Security.
"Liquidation
Date"
means
the date on which assets are to be distributed to Holders in accordance with
Section
9.4(a)
hereunder following dissolution of the Trust.
"Liquidation
Distribution"
has the
meaning specified in
Section 9.4(d)
.
"Majority
in Liquidation Amount"
means
Common or Preferred Securities, as the case may be, representing more than fifty
percent (50%) of the aggregate Liquidation Amount of all (or a specified group
of) then Outstanding Common or Preferred Securities, as the case may
be.
"Note
Event of Default"
means
any
"
Event
of Default"
specified in
Section
5.1
of the
Indenture.
"Note
Redemption Date"
means,
with respect to any Notes to be redeemed under the Indenture, the date fixed for
redemption of such Notes under the Indenture.
"Note
Trustee"
means
the Person identified as the
"
Trustee"
in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Notes"
means
the Depositor's Junior Subordinated Notes issued pursuant to the
Indenture.
"Officers'
Certificate"
means a
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the President or a Vice President, and by the Chief Financial Officer,
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of HHT, and delivered to the Trustees. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Trust Agreement (other than the certificate provided pursuant to
Section
8.16
which is
not an Officers' Certificate) shall include:
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(a) a
statement by each officer signing the Officers' Certificate that such
officer has read the covenant or condition and the definitions relating
thereto;
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(b) a
brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
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(c) a
statement that such officer has made such examination or investigation as,
in such officer's opinion, is necessary to enable such officer to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
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(d) a
statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.
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"Operative
Documents"
means
the Purchase Agreement, the Indenture, the Trust Agreement, the Notes and the
Trust Securities.
"Opinion
of Counsel"
means a
written opinion of counsel, who may be counsel for, or an employee of, the
Depositor or any Affiliate of the Depositor.
"Optional
Redemption Price"
means,
with respect to any Trust Security, an amount equal to one hundred percent
(100%) of the Liquidation Amount of such Trust Security on the Redemption Date,
plus accumulated and unpaid Distributions to the Redemption Date, plus the
related amount of the premium, if any, and/or accrued interest, including
Additional Interest, if any, thereon paid by the Depositor upon the concurrent
redemption or payment at maturity of a Like Amount of Notes.
"Optional
Note Redemption Price"
means,
with respect to any Note to be redeemed on any Redemption Date under the
Indenture, an amount equal to one hundred percent (100%) of the outstanding
principal amount of such Note, together with accrued interest, including any
Additional Interest (to the extent legally enforceable), thereon through but not
including the date fixed as such Redemption Date.
"Original
Issue Date"
means
the date of original issuance of the Trust Securities.
"Original
Trust
Agreement"
has the
meaning specified in the recitals to this Trust Agreement.
"Outstanding"
, when
used with respect to any Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under
this Trust Agreement, except
:
(a) Trust
Securities theretofore canceled by the Property Trustee or delivered to the
Property Trustee for cancellation;
(b) Trust
Securities for which payment or redemption money in the necessary amount has
been theretofore deposited with the Property Trustee or any Paying Agent in
trust for the Holders of such Trust Securities;
provided
,
that if
such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Trust
Securities that have been paid or in exchange for or in lieu of which other
Trust Securities have been executed and delivered pursuant to the provisions of
this Trust Agreement, unless proof satisfactory to the Property Trustee is
presented that any such Trust Securities are held by Holders in whose hands such
Trust Securities are valid, legal and binding obligations of the
Trust;
provided,
that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred Securities owned by
the Depositor, any Trustee or any Affiliate of the Depositor or of any Trustee
shall be disregarded and deemed not to be Outstanding, except that (i) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of
the Outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor, any Trustee or any Affiliate of the Depositor or of any
Trustee.
"Owner"
means
each Person who is the beneficial owner of Book-Entry Preferred Securities as
reflected in the records of the Depositary or, if a Depositary Participant is
not the beneficial owner, then the beneficial owner as reflected in the records
of the Depositary Participant.
"Paying
Agent"
means
any Person authorized by the Administrative Trustees to pay Distributions or
other amounts in respect of any Trust Securities on behalf of the
Trust.
"Payment
Account"
means a
segregated non-interest-bearing corporate trust account maintained by the
Property Trustee for the benefit of the Holders in which all amounts paid in
respect of the Notes will be held and from which the Property Trustee, through
the Paying Agent, shall make payments to the Holders in accordance with
Sections
3.1
,
4.1
and
4.2
.
"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.
"Preferred
Security"
means an
undivided beneficial interest in the assets of the Trust, having a Liquidation
Amount of $1,000 and having the rights provided therefor in this Trust
Agreement.
"Preferred
Securities Certificate"
means a
certificate evidencing ownership of Preferred Securities, substantially in the
form attached as
Exhibit
C
.
"Property
Trustee"
means
the Person identified as the
"
Property
Trustee"
in the
preamble to this Trust Agreement, solely in its capacity as Property Trustee of
the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor Property Trustee appointed as herein
provided.
"Purchase
Agreement"
means
the Purchase Agreement executed and delivered by the Trust, the Depositor and
the Initial Purchaser named in the Purchase Agreement contemporaneously with the
execution and delivery of this Trust Agreement, as amended from time to
time.
"QIB"
means a
"Qualified Institutional Buyer" as defined in Rule 144A under the Securities Act
of 1933, as amended.
"QP"
means a
"Qualified Purchaser" as defined in Section 2(a)(51) of the Investment Company
Act of 1940, as amended.
"QIB/QP"
means a
QIB that is also a QP.
"Redemption
Date"
means,
with respect to any Trust Security to be redeemed, the date fixed for such
redemption by or pursuant to this Trust Agreement;
provided
,
that each
Note Redemption Date and the stated maturity (or any date of principal repayment
upon early maturity) of the Notes shall be a Redemption Date for a Like Amount
of Trust Securities.
"Redemption
Price"
means
the Special Redemption Price or Optional Redemption Price, as applicable. If the
Depositor has redeemed the Notes at the Special Note Redemption Price, the Trust
shall redeem the Trust Securities at the Special Redemption Price. If the
Depositor has redeemed the Notes at the Optional Note Redemption Price, the
Trust shall redeem the Trust Securities at the Optional Redemption
Price.
"Reference
Banks"
has the
meaning specified in
Schedule
A
.
"Responsible
Officer"
means,
with respect to the Property Trustee, the officer in the Institutional Trust
Services department of the Property Trustee having direct responsibility for the
administration of this Trust Agreement.
"Securities
Act"
means
the Securities Act of 1933, and any successor statute thereto, in each case as
amended from time to time.
"Securities
Certificate"
means
any one of the Common Securities Certificates or the Preferred Securities
Certificates.
"Securities
Register"
and
"
Securities
Registrar"
have the
respective meanings specified in
Section 5.7
.
"Special
Redemption Price"
means,
with respect to any Trust Security, an amount equal to one hundred seven and one
half percent (107.5%) of the Liquidation Amount of such Trust Security on the
Redemption Date, plus accumulated and unpaid Distributions to the Redemption
Date, plus the related amount of the premium, if any, and/or accrued interest,
including Additional Interest, if any, thereon paid by the Depositor upon the
concurrent redemption or payment at maturity of a Like Amount of
Notes.
"Special
Note Redemption Price"
means,
with respect to any Note to be redeemed on any Redemption Date under the
Indenture, an amount equal to one hundred seven and one half percent (107.5%) of
the outstanding principal amount of such Note, together with accrued interest,
including Additional Interest, thereon through but not including the date fixed
as such Redemption Date.
"Successor
Securities"
has the
meaning specified in
Section 9.5(a)
.
"
Tax
Event
" has the
meaning specified in Section 1.1 of the Indenture.
"Trust"
means
the Delaware statutory trust known as "Hersha Statutory Trust I," which was
created on May 11, 2005 under the Delaware Statutory Trust Act pursuant to the
Original Trust Agreement and the filing of the Certificate of Trust, and
continued pursuant to this Trust Agreement.
"Trust
Agreement"
means
this Amended and Restated Trust Agreement, as the same may be modified, amended
or supplemented from time to time in accordance with the applicable provisions
hereof, including all Schedules and Exhibits.
"Trustees"
means
the Administrative Trustees, the Property Trustee and the Delaware Trustee, each
as defined in this
Article
I
.
"Trust
Property"
means
(a) the Notes, (b) any cash on deposit in, or owing to, the Payment
Account and (c) all proceeds and rights in respect of the foregoing and any
other property and assets for the time being held or deemed to be held by the
Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust
Security"
means
any one of the Common Securities or the Preferred Securities.
ARTICLE
II.
SECTION
2.1.
Name
.
The trust
continued hereby shall be known as "Hersha Statutory Trust I", as such name may
be modified from time to time by the Administrative Trustees following written
notice to the Holders of Trust Securities and the other Trustees, in which name
the Trustees may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and sue and be sued.
SECTION
2.2.
Office
of the Delaware Trustee; Principal Place of Business.
The
address of the Delaware Trustee in the State of Delaware is Chase Bank USA,
National Association, 500 Stanton Christiana Road, Building 4 (3
rd
Floor),
Newark, DE 19713, Attention: Institutional Trust Services, or such other address
in the State of Delaware as the Delaware Trustee may designate by written notice
to the Holders, the Depositor, the Property Trustee and the Administrative
Trustees. The principal executive office of the Trust is 510 Walnut Street, 9th
Floor, Philadelphia, PA 19106, Attention: Ashish Parikh, as such address may be
changed from time to time by the Administrative Trustees following written
notice to the Holders and the other Trustees.
SECTION
2.3.
Initial
Contribution of Trust Property; Fees, Costs and Expenses
.
The
Property Trustee acknowledges receipt from the Depositor in connection with the
Original Trust Agreement of the sum of ten dollars ($10), which constituted the
initial Trust Property. The Depositor shall pay all fees, costs and expenses of
the Trust (except with respect to the Trust Securities) as they arise or shall,
upon request of any Trustee, promptly reimburse such Trustee for any such fees,
costs and expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such fees, costs or expenses.
SECTION
2.4.
Purposes
of Trust
.
(a)
The
exclusive purposes and functions of the Trust are to (i) issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes and
(ii) engage in only those activities necessary or incidental thereto. The
Delaware Trustee, the Property Trustee and the Administrative Trustees are
trustees of the Trust, and have all the rights, powers and duties to the extent
set forth herein. The Trustees hereby acknowledge that they are trustees of the
Trust.
(b)
So long
as this Trust Agreement remains in effect, the Trust (or the Trustees acting on
behalf of the Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular, the
Trust (or the Trustees acting on behalf of the Trust) shall not (i) acquire
any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as expressly provided herein, (iii) incur any
indebtedness for borrowed money or issue any other debt, (iv) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property, (v) take or consent to any action that would reasonably be
expected to cause the Trust to become taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes, (vi)
take or consent to any action that would cause the Notes to be treated as other
than indebtedness of the Depositor for United States federal income tax purposes
or (vii) take or consent to any action that would cause the Trust to be deemed
to be an "investment company" required to be registered under the Investment
Company Act.
SECTION
2.5.
Authorization
to Enter into Certain Transactions
.
(a)
The
Trustees shall conduct the affairs of the Trust in accordance with and subject
to the terms of this Trust Agreement. In accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees,
under this Trust Agreement, and to perform all acts in furtherance thereof,
including the following:
(i)
As among
the Trustees, each Administrative Trustee shall severally have the power and
authority to act on behalf of the Trust with respect to the following
matters:
(A)
the
issuance and sale of the Trust Securities;
(B)
to cause
the Trust to enter into, and to execute, deliver and perform on behalf of the
Trust, such agreements as may be necessary or desirable in connection with the
purposes and function of the Trust, including, without limitation, a common
securities subscription agreement and a junior subordinated note purchase
agreement;
(C)
assisting
in the sale of the Preferred Securities in one or more transactions exempt from
registration under the Securities Act, and in compliance with applicable state
securities or blue sky laws;
(D)
assisting
in the sending of notices (other than notices of default) and other information
regarding the Trust Securities and the Notes to the Holders in accordance with
this Trust Agreement;
(E)
the
appointment of a Paying Agent and Securities Registrar in accordance with this
Trust Agreement;
(F)
execution
of the Trust Securities on behalf of the Trust in accordance with this Trust
Agreement;
(G)
execution
and delivery of closing certificates, if any, pursuant to the Purchase Agreement
and application for a taxpayer identification number for the Trust;
(H)
preparation
and filing of all applicable tax returns and tax information reports that are
required to be filed on behalf of the Trust;
(I)
establishing
a record date with respect to all actions to be taken hereunder that require a
record date to be established, except as provided in
Section
6.10(a)
;
(J)
unless
otherwise required by the Delaware Statutory Trust Act, to execute on behalf of
the Trust (either acting alone or together with the other Administrative
Trustees) any documents that such Administrative Trustee has the power to
execute pursuant to this Trust Agreement; and
(K)
the
taking of any action incidental to the foregoing as such Administrative Trustee
may from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement.
(ii)
As among
the Trustees, the Property Trustee shall have the power, duty and authority to
act on behalf of the Trust with respect to the following matters:
(A)
the
receipt and holding of legal title of the Notes;
(B)
the
establishment of the Payment Account;
(C)
the
collection of interest, principal and any other payments made in respect of the
Notes and the holding of such amounts in the Payment Account;
(D)
the
distribution through the Paying Agent of amounts distributable to the Holders in
respect of the Trust Securities;
(E)
the
exercise of all of the rights, powers and privileges of a holder of the Notes in
accordance with the terms of this Trust Agreement;
(F)
the
sending of notices of default and other information regarding the Trust
Securities and the Notes to the Holders in accordance with this Trust
Agreement;
(G)
the
distribution of the Trust Property in accordance with the terms of this Trust
Agreement;
(H)
to the
extent provided in this Trust Agreement, the winding up of the affairs of and
liquidation of the Trust, provided that the Administrative Trustees shall have
the power, duty and authority to act on behalf of the Trust with respect to the
preparation, execution and filing of the certificate of cancellation of the
Trust with the Secretary of State of the State of Delaware; and
(I)
the
taking of any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).
(b)
In
connection with the issue and sale of the Preferred Securities, the Depositor
shall have the right and responsibility to assist the Trust with respect to, or
effect on behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i)
the
negotiation of the terms of, and the execution and delivery of, the Purchase
Agreement providing for the sale of the Preferred Securities in one or more
transactions exempt from registration under the Securities Act, and in
compliance with applicable state securities or blue sky laws; and
(ii)
the
taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
(c)
Notwithstanding
anything herein to the contrary, the Administrative Trustees are authorized and
directed to conduct the affairs of the Trust and authorized to operate the Trust
so that the Trust will not be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes, so that the
Notes will be treated as indebtedness of the Depositor for United States federal
income tax purposes and so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act.
In respect thereof, each Administrative Trustee is authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that such Administrative Trustee determines in his or her
discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the
Holders of the Outstanding Preferred Securities. In no event shall the
Administrative Trustees be liable to the Trust or the Holders for any failure to
comply with this
Section
2.5
to the
extent that such failure results solely from a change in law or regulation or in
the interpretation thereof.
(d)
Any
action taken by a Trustee in accordance with its powers shall constitute the act
of and serve to bind the Trust. In dealing with any Trustee acting on behalf of
the Trust, no Person shall be required to inquire into the authority of such
Trustee to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of any Trustee as set forth in this
Trust Agreement.
SECTION
2.6.
Assets
of Trust
.
The
assets of the Trust shall consist of the Trust Property.
SECTION
2.7.
Title
to Trust Property
.
(a)
Legal
title to all Trust Property shall be vested at all times in the Property Trustee
and shall be held and administered by the Property Trustee in trust for the
benefit of the Trust and the Holders in accordance with this Trust
Agreement.
(b)
The
Holders shall not have any right or title to the Trust Property other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement.
ARTICLE
III.
PAYMENT
ACCOUNT; PAYING AGENTS
SECTION
3.1.
Payment
Account
.
(a)
On or
prior to the Closing Date, the Property Trustee shall establish the Payment
Account. The Property Trustee and the Paying Agent shall have exclusive control
and sole right of withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account in accordance
with this Trust Agreement. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Holders and for Distribution as
herein provided.
(b)
The
Property Trustee shall deposit in the Payment Account, promptly upon receipt,
all payments of principal of or interest on, and any other payments with respect
to, the Notes. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
SECTION
3.2.
Appointment
of Paying Agents
.
The
Paying Agent shall initially be the Property Trustee. The Paying Agent shall
make Distributions to Holders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account solely for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove the
Paying Agent in their sole discretion. Any Person acting as Paying Agent shall
be permitted to resign as Paying Agent upon thirty (30) days' written notice to
the Administrative Trustees and the Property Trustee. If the Property Trustee
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor (which shall be a bank or trust company) to act as Paying Agent. Such
successor Paying Agent appointed by the Administrative Trustees shall execute
and deliver to the Trustees an instrument in which such successor Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
will hold all sums, if any, held by it for payment to the Holders in trust for
the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Property Trustee. The provisions of
Article
VIII
shall
apply to the Property Trustee also in its role as Paying Agent, for so long as
the Property Trustee shall act as Paying Agent and, to the extent applicable, to
any other Paying Agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE
IV.
DISTRIBUTIONS;
REDEMPTION
SECTION
4.1.
Distributions
.
(a)
The Trust
Securities represent undivided beneficial interests in the Trust Property, and
Distributions (including any Additional Interest Amounts) will be made on the
Trust Securities at the rate and on the dates that payments of interest
(including any Additional Interest) are made on the Notes.
Accordingly:
(i)
Distributions
on the Trust Securities shall be cumulative, and shall accumulate whether or not
there are funds of the Trust available for the payment of Distributions.
Distributions shall accumulate from May 13, 2005, and, except as provided in
clause (ii) below, shall be payable quarterly in arrears on March 30
,
June 30,
September 30 and December 30 of each year, commencing on June 30, 2005. If any
date on which a Distribution is otherwise payable on the Trust Securities is not
a Business Day, then the payment of such Distribution 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 each such date until
the 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 such date (each date on which Distributions are payable in accordance with
this
Section 4.1(a)(i)
, a
"
Distribution
Date"
);
(ii)
Distributions
shall accumulate in respect of the Trust Securities at a fixed rate equal to
7.34% per annum through the interest payment date on June 30, 2010 ("Fixed Rate
Period") and thereafter at
a
variable rate equal to LIBOR plus 3.00
%
per
annum of the Liquidation Amount of the Trust Securities, such rate being the
rate of interest payable on the Notes. LIBOR shall be determined by the
Calculation Agent in accordance with
Schedule
A
. The
amount of Distributions payable for any period less than a full Distribution
period shall be computed on the basis of a 360-day year and the actual number of
days elapsed in the relevant Distribution period. The amount of Distributions
payable for any period shall include any Additional Interest Amounts in respect
of such period; and
(iii)
Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.
(b)
Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to
the Holders thereof as they appear on the Securities Register for the Trust
Securities at the close of business on the relevant record date, which shall be
at the close of business on the fifteenth day (whether or not a Business Day)
preceding the relevant Distribution Date, except that Distributions and any
Additional Interest Amounts payable on the stated maturity (or any date of
principal repayment upon early maturity) of the principal of a Trust Security or
on a Redemption Date shall be paid to the Person to whom principal is
paid. Distributions payable on any Trust Securities that are not
punctually paid on any Distribution Date as a result of the Depositor having
failed to make an interest payment under the Notes will cease to be payable to
the Person in whose name such Trust Securities are registered on the relevant
record date, and such defaulted Distributions and any Additional Interest
Amounts will instead be payable to the Person in whose name such Trust
Securities are registered on the special record date, or other specified date
for determining Holders entitled to such defaulted Distribution and Additional
Interest Amount, established in the same manner, and on the same date, as such
is established with respect to the Notes under the Indenture.
(c)
As a
condition to the payment of any principal of or interest on the Trust Securities
without the imposition of withholding tax, the Administrative Trustees shall
require the previous delivery of properly completed and signed applicable U.S.
federal income tax certifications (generally, an Internal Revenue Service Form
W-9 (or applicable successor form) in the case of a person that is a "United
States person" within the meaning of Section 7701(a)(30) of the Code or an
Internal Revenue Service Form W-8 (or applicable successor form) in the case of
a person that is not a "United States person" within the meaning of Section
7701(a)(30) of the Code) and any other certification acceptable to it to enable
the Property Trustee or any Paying Agent to determine their respective duties
and liabilities with respect to any taxes or other charges that they may be
required to pay, deduct or withhold in respect of such Trust Securities.
S
ECTION
4.2.
Redemption
.
(a)
On each
Note Redemption Date and on the stated maturity (or any date of principal
repayment upon early maturity) of the Notes and on each other date on (or in
respect of) which any principal on the Notes is repaid, the Trust will be
required to redeem a Like Amount of Trust Securities at the Redemption
Price.
(b)
Notice of
redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than thirty (30) nor more than sixty (60) days prior to
the Redemption Date to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Securities Register. All notices 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
provided pursuant to the Indenture, as calculated by the Depositor, together
with a statement that it is an estimate and that the actual Redemption Price
will be calculated by the Calculation Agent 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 the Outstanding Trust Securities are to be redeemed, the identification
(and, in the case of partial redemption, the respective amounts) and Liquidation
Amounts of the particular Trust Securities to be redeemed;
(iv)
that on
the Redemption Date, the Redemption Price will become due and payable upon each
such Trust Security, or portion thereof, to be redeemed and that Distributions
thereon will cease to accumulate on such Trust Security or such portion, as the
case may be, on and after said date, except as provided in
Section
4.2(d)
;
(v)
the place
or places where the Trust Securities are to be surrendered for the payment of
the Redemption Price; and
(vi)
such
other provisions as the Property Trustee deems relevant.
(c)
The Trust
Securities (or portion thereof) redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity of Notes. Redemptions of the Trust Securities
(or portion thereof) shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
Under the
Indenture, the Notes may be redeemed by the Depositor on any Interest Payment
Date, at the Depositor's option, on or after June 30, 2010,
in whole
or in part, from time to time at the Optional Note Redemption Price. The Notes
may also be redeemed by the Depositor, at its option pursuant to the terms of
the Indenture, in whole but not in part, upon the occurrence and during the
continuation of an Investment Company Event or a Tax Event, at the Special Note
Redemption Price.
(d)
If the
Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then by 10:00 A.M., New York City time, on the Redemption Date, the
Depositor shall deposit sufficient funds with the Property Trustee to pay the
Redemption Price. If such deposit has been made by such time, then by 12:00
noon, New York City time, on the Redemption Date, the Property Trustee will,
with respect to Book-Entry Preferred Securities, irrevocably deposit with the
Depositary for such Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give
such Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to Preferred
Securities that are not Book-Entry Preferred Securities, the Property Trustee
will irrevocably deposit with the Paying Agent, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give
the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities (or portion
thereof) called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such deposit,
all rights of Holders holding Trust Securities (or portion thereof) so called
for redemption will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust Securities
on or prior to the Redemption Date, but without interest, and, in the case of a
partial redemption, the right of such Holders to receive a new Trust Security or
Securities of authorized denominations, in aggregate Liquidation Amount equal to
the unredeemed portion of such Trust Security or Securities, and such Securities
(or portion thereof) called for redemption will cease to be Outstanding. In the
event that any date on which any Redemption Price is payable is not a Business
Day, then payment of the Redemption Price payable on such date will 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 each such date
until the 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 such date. In the event that payment of the Redemption Price in
respect of any Trust Securities (or portion thereof) called for redemption is
improperly withheld or refused and not paid by the Trust, Distributions on such
Trust Securities (or portion thereof) will continue to accumulate, as set forth
in
Section
4.1
, from
the Redemption Date originally established by the Trust for such Trust
Securities (or portion thereof) to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e)
Subject
to
Section 4.3(a)
, if less
than all the Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities to be redeemed
shall be allocated
pro
rata
to the
Common Securities and the Preferred Securities based upon the relative aggregate
Liquidation Amounts of the Common Securities and the Preferred Securities. The
Preferred Securities to be redeemed shall be selected on a
pro
rata
basis
based upon their respective Liquidation Amounts not more than sixty (60) days
prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption;
provided,
that with
respect to Holders that would be required to hold less than one hundred (100)
but more than zero (0) Trust Securities as a result of such redemption, the
Trust shall redeem Trust Securities of each such Holder so that after such
redemption such Holder shall hold either one hundred (100) Trust Securities or
such Holder no longer holds any Trust Securities, and shall use such method
(including, without limitation, by lot) as the Trust shall deem fair and
appropriate; and
provided
,
further
,
that so
long as the Preferred Securities are Book-Entry Preferred Securities, such
selection shall be made in accordance with the Applicable Depositary Procedures
for the Preferred Securities by such Depositary. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities
(or portion thereof) selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount of Preferred
Securities that has been or is to be redeemed.
(f)
The Trust
in issuing the Trust Securities may use "CUSIP" numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the "CUSIP" numbers of the
Trust Securities in notices of redemption and related materials as a convenience
to Holders;
provided
, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Trust Securities or as contained in any
notice of redemption and related materials.
SECTION
4.3.
Subordination
of Common Securities
.
(a)
Payment
of Distributions (including any Additional Interest Amounts) on, the Redemption
Price of and the Liquidation Distribution in respect of, the Trust Securities,
as applicable, shall be made,
pro
rata
among
the Common Securities and the Preferred Securities based on the Liquidation
Amount of the respective Trust Securities;
provided
,
that if
on any Distribution Date, Redemption Date or Liquidation Date an Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including any Additional Interest Amounts) on, Redemption Price of or
Liquidation Distribution in respect of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Interest Amounts) on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Interest Amounts) on, or the Redemption
Price of or the Liquidation Distribution in respect of, the Preferred Securities
then due and payable.
(b)
In the
case of the occurrence of any Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of Default
under this Trust Agreement until all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holders of the Common Securities, and only the Holders
of all the Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
SECTION
4.4.
Payment
Procedures
.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in writing 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 Securities Register. If any Preferred Securities are held by a Depositary,
such Distributions thereon shall be made to the Depositary in immediately
available funds. Payments in respect of the Common Securities shall be made in
such manner as shall be mutually agreed between the Property Trustee and the
Holder of all the Common Securities.
SECTION
4.5.
Withholding
Tax
.
The Trust
and the Administrative Trustees shall comply with all withholding and backup
withholding tax requirements under United States federal, state and local law.
The Administrative Trustees on behalf of the Trust shall request, and the
Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding and backup withholding tax with
respect to each Holder and any representations and forms as shall reasonably be
requested by the Administrative Trustees on behalf of the Trust to assist it in
determining the extent of, and in fulfilling, its withholding and backup
withholding tax obligations. The Administrative Trustees shall file required
forms with applicable jurisdictions and, unless an exemption from withholding
and backup withholding tax is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
jurisdiction with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder. In the event of any claimed overwithholding, Holders
shall be limited to an action against the applicable jurisdiction. If the amount
required to be withheld was not withheld from actual Distributions made, the
Administrative Trustees on behalf of the Trust may reduce subsequent
Distributions by the amount of such required withholding.
SECTION
4.6.
Tax
Returns and Other Reports
.
The
Administrative Trustees shall prepare (or cause to be prepared) at the principal
office of the Trust in the United States, as defined for purposes of Treasury
regulations section 301.7701-7, at the Depositor's expense, and file, all United
States federal, state and local tax and information returns and reports required
to be filed by or in respect of the Trust. The Administrative Trustees shall
prepare at the principal office of the Trust in the United States, as defined
for purposes of Treasury regulations section 301.7701-7, and furnish (or cause
to be prepared and furnished), by January 31 in each taxable year of the Trust
to each Holder all Internal Revenue Service forms and returns required to be
provided by the Trust. The Administrative Trustees shall provide the Depositor,
Cohen Bros. & Co. and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing.
SECTION
4.7.
Payment
of Taxes, Duties, Etc. of the Trust
.
Upon
receipt under the Notes of Additional Tax Sums and upon the written direction of
the Administrative Trustees, the Property Trustee shall promptly pay, solely out
of monies on deposit pursuant to this Trust Agreement, any Additional Taxes
imposed on the Trust by the United States or any other taxing
authority.
SECTION
4.8.
Payments
under Indenture or Pursuant to Direct Actions
.
Any
amount payable hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder (or any Owner with
respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or
Section 6.10(b)
of this
Trust Agreement.
SECTION
4.9.
Exchanges
.
(a)
If at any
time the Depositor or any of its Affiliates (in either case, a
"
Depositor
Affiliate"
) is the
Owner or Holder of any Preferred Securities, such Depositor Affiliate shall have
the right to deliver to the Property Trustee all or such portion of its
Preferred Securities as it elects and, subject to compliance with Sections 2.2
and 3.5 of the Indenture, receive, in exchange therefor, a Like Amount of Notes.
Such election shall be exercisable effective on any Distribution Date by such
Depositor Affiliate delivering to the Property Trustee (i) at least ten (10)
Business Days prior to the Distribution Date on which such exchange is to occur,
the registration instructions and the documentation, if any, required pursuant
to Sections 2.2 and 3.5 of the Indenture to enable the Indenture Trustee to
issue the requested Like Amount of Notes, (ii) a written notice of such election
specifying the Liquidation Amount of Preferred Securities with respect to which
such election is being made and the Distribution Date on which such exchange
shall occur, which Distribution Date shall be not less than ten (10) Business
Days after the date of receipt by the Property Trustee of such election notice
and (iii) shall be conditioned upon such Depositor Affiliate having delivered or
caused to be delivered to the Property Trustee or its designee the Preferred
Securities that are the subject of such election by 10:00 A.M. New York time, on
the Distribution Date on which such exchange is to occur. After the exchange,
such Preferred Securities will be canceled and will no longer be deemed to be
Outstanding and all rights of the Depositor Affiliate with respect to such
Preferred Securities will cease.
(b)
In the
case of an exchange described in
Section
4.9(a)
, the
Property Trustee on behalf of the Trust will, on the date of such exchange,
exchange Notes having a principal amount equal to a proportional amount of the
aggregate Liquidation Amount of the Outstanding Common Securities, based on the
ratio of the aggregate Liquidation Amount of the Preferred Securities exchanged
pursuant to
Section
4.9(a)
divided
by the aggregate Liquidation Amount of the Preferred Securities Outstanding
immediately prior to such exchange, for such proportional amount of Common
Securities held by the Depositor (which contemporaneously shall be canceled and
no longer be deemed to be Outstanding);
provided
, that
the Depositor delivers or causes to be delivered to the Property Trustee or its
designee the required amount of Common Securities to be exchanged by 10:00 A.M.
New York time, on the Distribution Date on which such exchange is to
occur.
SECTION
4.10.
Calculation
Agent.
(a)
The
Property Trustee shall initially, and, subject to the immediately following
sentence, for so long as it holds any of the Notes, be the Calculation Agent for
purposes of determining LIBOR for each Distribution Date. The Calculation Agent
may be removed by the Administrative Trustees at any time. If the Calculation
Agent is unable or unwilling to act as such or is removed by the Administrative
Trustees, the Administrative Trustees will promptly appoint as a replacement
Calculation Agent the London office of a leading bank which is engaged in
transactions in six-month Eurodollar deposits in the international Eurodollar
market and which does not control or is not controlled by or under common
control with the Administrative Trustee or its Affiliates. The Calculation Agent
may not resign its duties without a successor having been duly
appointed.
(b)
The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date, 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
(rounded to the nearest cent, with half a cent being rounded upwards) for the
related Distribution Date, and will communicate such rate and amount to the
Depositor, the Administrative Trustees, the Note Trustee, each Paying Agent and
the Depositary. The Calculation Agent will also specify to the Administrative
Trustee the quotations upon which the foregoing rates and amounts are based and,
in any event, the Calculation Agent shall notify the Administrative Trustees
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 Distribution 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 Trust Securities, "Business Day" shall be defined as any
day on which dealings in deposits in Dollars are transacted in the London
interbank market.
SECTION
4.11.
Certain
Accounting Matters.
(a)
At all
times during the existence of the Trust, the Administrative Trustees shall keep,
or cause to be kept at the principal office of the Trust in the United States,
as defined for purposes of Treasury Regulations section 301.7701-7, full books
of account, records and supporting documents, which shall reflect in reasonable
detail each transaction of the Trust. The books of account shall be maintained
on the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied.
(b)
The
Administrative Trustees shall either (i) if the Depositor is then subject to
such reporting requirements, cause each Form 10-K and Form 10-Q prepared by the
Depositor and filed with the Commission in accordance with the Exchange Act to
be delivered to each Holder, with a copy to the Property Trustee, within thirty
(30) days after the filing thereof or (ii) cause to be prepared at the
principal office of the Trust in the United States, as defined for purposes of
Treasury Regulations section 301.7701-7, and delivered to each of the Holders,
with a copy to the Property Trustee, within ninety (90) days after the end of
each Fiscal Year, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c)
If the
Depositor intends to file its annual and quarterly information with 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 Administrative Trustees shall notify the Property Trustee in the
manner prescribed herein of each such annual and quarterly filing. The Property
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 Administrative Trustees of its
financial statements to the Property Trustee in compliance with the provisions
of Section 314(a) of the Trust Indenture Act, if applicable. The Property
Trustee shall have no duty to search for or obtain any electronic or other
filings that the Depositor makes with the Commission, regardless of whether such
filings are periodic, supplemental or otherwise. Delivery of reports,
information and documents to the Property Trustee pursuant to this
Section
4.11(c)
shall be
solely for purposes of compliance with this
Section
4.11
and, if
applicable, with Section 314(a) of the Trust Indenture Act. The Property
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 Depositor's compliance with any of its
covenants hereunder, as to which the Property Trustee is entitled to rely upon
Officers' Certificates.
(d)
The Trust
shall maintain one or more bank accounts in the United States, as defined for
purposes of Treasury Regulations section 301.7701-7, in the name and for the
sole benefit of the Trust;
provided,
however,
that all
payments of funds in respect of the Notes held by the Property Trustee shall be
made directly to the Payment Account and no other funds of the Trust shall be
deposited in the Payment Account. The sole signatories for such accounts
(including the Payment Account) shall be designated by the Property
Trustee.
ARTICLE
V.
SECTION
5.1.
Initial
Ownership
.
Upon the
creation of the Trust and the contribution by the Depositor referred to in
Section 2.3
and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION
5.2.
Authorized
Trust Securities
.
The Trust
shall be authorized to issue one series of Preferred Securities having an
aggregate Liquidation Amount of $25,000,000 and one series of Common Securities
having an aggregate Liquidation Amount of $774,000.
SECTION
5.3.
Issuance
of the Common Securities; Subscription and Purchase of Notes
.
On the
Closing Date, an Administrative Trustee, on behalf of the Trust, shall execute
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, evidencing an aggregate of 774 Common Securities having
an aggregate Liquidation Amount of Seven Hundred Seventy-Four Thousand Dollars
(
$
774,000
)
, against
receipt by the Trust of the aggregate purchase price of such Common Securities
of Seven Hundred Seventy-Four Thousand Dollars ($774,000). Contemporaneously
therewith and with the sale by the Trust to the Holders of an aggregate of
25,000 Preferred Securities having an aggregate Liquidation Amount of
Twenty-Five Million Dollars ($25,000,000) an Administrative Trustee, on behalf
of the Trust, shall purchase from the Depositor Notes, to be registered in the
name of the Property Trustee on behalf of the Trust and having an aggregate
principal amount equal to Twenty-Five Million Seven Hundred Seventy-Four
Thousand Dollars ($25,774,000), and, in satisfaction of the purchase price for
such Notes, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of Twenty-Five Million Seven Hundred Seventy-Four Thousand
Dollars ($25,774,000) (being the aggregate amount paid by the Holders for the
Preferred Securities, and the amount paid by the Depositor for the Common
Securities).
SECTION
5.4.
The
Securities Certificates
.
(a)
The
Preferred Securities Certificates shall be issued in minimum denominations of
$100,000 Liquidation Amount and integral multiples of $1,000 in excess thereof,
and the Common Securities Certificates shall be issued in minimum denominations
of $10,000 Liquidation Amount and integral multiples of $1,000 in excess
thereof. The Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one Administrative Trustee. Securities
Certificates bearing the signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign such Securities
Certificates on behalf of the Trust shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the delivery of such
Securities Certificates or did not have such authority at the date of delivery
of such Securities Certificates.
(b)
On the
Closing Date, upon the written order of an authorized officer of the Depositor,
the Administrative Trustees shall cause Securities Certificates to be executed
on behalf of the Trust and delivered, without further corporate action by the
Depositor, in authorized denominations.
(c)
The
Preferred Securities issued to QIBs/QPs may be, except as provided in
Section
5.6
,
Book-Entry Preferred Securities issued in the form of one or more Global
Preferred Securities registered in the name of the Depositary, or its nominee
and deposited with the Depositary or a custodian for the Depositary for credit
by the Depositary to the respective accounts of the Depositary Participants
thereof (or such other accounts as they may direct). The Preferred Securities
issued to a Person other than a QIB/QP shall be issued in the form of Definitive
Preferred Securities Certificates.
(d)
A
Preferred Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. Such signature
shall be conclusive evidence that the Preferred Security has been authenticated
under this Trust Agreement. Upon written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate the Preferred
Securities for original issue. The Property Trustee may appoint an
authenticating agent that is a U.S. Person acceptable to the Trust to
authenticate the Preferred Securities. A Common Security need not be so
authenticated and shall be valid upon execution by one or more Administrative
Trustees. The form of this certificate of authentication can be found in
Section
5.13
.
SECTION
5.5.
Rights
of Holders
.
The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Holders against payment of the purchase price therefor will be
fully paid and non-assessable by the Trust. Except as provided in
Section
5.11(b)
, the
Holders of the Trust Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
[If
DTC Entry Insert the following Section:]
SECTION
5.6.
Book-Entry
Preferred Securities
.
(a)
A Global
Preferred Security may be exchanged, in whole or in part, for Definitive
Preferred Securities Certificates registered in the names of the Owners only if
such exchange complies with
Section
5.7
and
(i) the Depositary advises the Administrative Trustees and the Property
Trustee in writing that the Depositary is no longer willing or able properly to
discharge its responsibilities with respect to the Global Preferred Security,
and no qualified successor is appointed by the Administrative Trustees within
ninety (90) days of receipt of such notice, (ii) the Depositary ceases to
be a clearing agency registered under the Exchange Act and the Administrative
Trustees fail to appoint a qualified successor within ninety (90) days of
obtaining knowledge of such event, (iii) the Administrative Trustees at their
option advise the Property Trustee in writing that the Trust elects to terminate
the book-entry system through the Depositary or (iv) a Note Event of
Default has occurred and is continuing. Upon the occurrence of any event
specified in clause (i), (ii), (iii) or (iv) above, the Administrative Trustees
shall notify the Depositary and instruct the Depositary to notify all Owners of
Book-Entry Preferred Securities, the Delaware Trustee and the Property Trustee
of the occurrence of such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of the Preferred Securities
requesting the same. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Holders. Notwithstanding the foregoing, if
an Owner of a beneficial interest in a Global Preferred Security wishes at any
time to transfer an interest in such Global Preferred Security to a Person other
than a QIB/QP, such transfer shall be effected, subject to the Applicable
Depositary Procedures, in accordance with the provisions of this
Section
5.6
and
Section
5.7
, and the
transferee shall receive a Definitive Preferred Securities Certificate in
connection with such transfer. A holder of a Definitive Preferred Securities
Certificate that is a QIB/QP may, upon request and in accordance with the
provisions of this
Section
5.6
and
Section
5.7
,
exchange such Definitive Preferred Securities Certificate for a beneficial
interest in a Global Preferred Security.
(b)
If any
Global Preferred Security is to be exchanged for Definitive Preferred Securities
Certificates or canceled in part, or if any Definitive Preferred Securities
Certificate is to be exchanged in whole or in part for any Global Preferred
Security, then either (i) such Global Preferred Security shall be so surrendered
for exchange or cancellation as provided in this
Article
V
or (ii)
the aggregate Liquidation Amount represented by such Global Preferred Security
shall be reduced, subject to
Section
5.4
, or
increased by an amount equal to the Liquidation Amount represented by that
portion of the Global Preferred Security to be so exchanged or canceled, or
equal to the Liquidation Amount represented by such Definitive Preferred
Securities Certificates to be so exchanged for any Global Preferred Security, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Property 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 to the Administrative Trustees or the Securities
Registrar of any Global Preferred Security or Securities by the Depositary,
accompanied by registration instructions, the Administrative Trustees, or any
one of them, shall execute the Definitive Preferred Securities Certificates in
accordance with the instructions of the Depositary. None of the Securities
Registrar or the Trustees shall 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.
(c)
Every
Definitive Preferred Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof shall be executed and delivered in the
form of, and shall be, a Global Preferred Security, unless such Definitive
Preferred Securities Certificate is registered in the name of a Person other
than the Depositary for such Global Preferred Security or a nominee
thereof.
(d)
The
Depositary or its nominee, as registered owner of a Global Preferred Security,
shall be the Holder of such Global Preferred Security for all purposes under
this Trust Agreement and the Global Preferred Security, and Owners with respect
to a Global Preferred Security shall hold such interests pursuant to the
Applicable Depositary Procedures. The Securities Registrar and the Trustees
shall be entitled to deal with the Depositary for all purposes of this Trust
Agreement relating to the Global Preferred Securities (including the payment of
the Liquidation Amount of and Distributions on the Book-Entry Preferred
Securities represented thereby and the giving of instructions or directions by
Owners of Book-Entry Preferred Securities represented thereby and the giving of
notices) as the sole Holder of the Book-Entry Preferred Securities represented
thereby and shall have no obligations to the Owners thereof. None of the
Trustees nor the Securities Registrar shall have any liability in respect of any
transfers effected by the Depositary.
(e)
The
rights of the Owners of the Book-Entry Preferred Securities shall be exercised
only through the Depositary and shall be limited to those established by law,
the Applicable Depositary Procedures and agreements between such Owners and the
Depositary and/or the Depositary Participants;
provided
,
that
solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, to the extent that Preferred Securities are represented by a
Global Preferred Security, the Trustees may conclusively rely on, and shall be
fully protected in relying on, any written instrument (including a proxy)
delivered to the Property Trustee by the Depositary setting forth the Owners'
votes or assigning the right to vote on any matter to any other Persons either
in whole or in part. To the extent that Preferred Securities are represented by
a Global Preferred Security, the initial Depositary will make book-entry
transfers among the Depositary Participants and receive and transmit payments on
the Preferred Securities that are represented by a Global Preferred Security to
such Depositary Participants, and none of the Depositor or the Trustees shall
have any responsibility or obligation with respect thereto.
(f)
To the
extent that a notice or other communication to the Holders is required under
this Trust Agreement, for so long as Preferred Securities are represented by a
Global Preferred Security, the Trustees shall give all such notices and
communications to the Depositary, and shall have no obligations to the
Owners.
SECTION
5.7.
Registration
of Transfer and Exchange of Preferred Securities Certificates
.
(a)
The
Property Trustee shall keep or cause to be kept, at the Corporate Trust Office,
a register or registers (the
"
Securities
Register"
) in
which the registrar and transfer agent with respect to the Trust Securities (the
"
Securities
Registrar"
),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Preferred Securities Certificates and Common Securities
Certificates and registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Person acting as the Property Trustee shall
at all times also be the Securities Registrar. The provisions of
Article
VIII
shall
apply to the Property Trustee in its role as Securities Registrar.
(b)
Subject
to
Section
5.7(d)
, upon
surrender for registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to
Section 5.7(f)
, the
Administrative Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount as may be required by this
Trust Agreement dated the date of execution by such Administrative Trustee or
Trustees. At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificate to be exchanged at the office or agency
maintained pursuant to
Section
5.7(f)
.
Whenever any Preferred Securities Certificates are so surrendered for exchange,
the Administrative Trustees or any one of them shall execute by manual or
facsimile signature and deliver to the Property Trustee, and the Property
Trustee shall authenticate and deliver, the Preferred Securities Certificates
that the Holder making the exchange is entitled to receive.
(c)
The
Securities Registrar shall not be required (i) to issue, register the
transfer of or exchange any Preferred Security during a period beginning at the
opening of business fifteen (15) days before the day of selection for redemption
of such Preferred Securities pursuant to
Article
IV
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 Preferred
Security so selected for redemption in whole or in part, except, in the case of
any such Preferred Security to be redeemed in part, any portion thereof not to
be redeemed.
(d)
Every
Preferred Securities Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing and
accompanied by a certificate of the transferor substantially in the form set
forth as
Exhibit
E
hereto.
(e)
No
service charge shall be made for any registration of transfer or exchange of
Preferred Securities Certificates, but the Property Trustee on behalf of the
Trust may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Preferred Securities Certificates.
(f)
The
Administrative Trustees shall designate an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and initially designate the Corporate Trust
Office as its office and agency for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor, the Property Trustee and to
the Holders of any change in the location of any such office or
agency.
(g)
The
Preferred Securities may only be transferred to a "Qualified Purchaser" as such
term is defined in Section 2(a)(51) of the Investment Company Act. Neither the
Property 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
5.7
to be
delivered to the Trustee or the Securities Registrar, such party 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
5.8.
Mutilated,
Destroyed, Lost or Stolen Securities Certificates
.
(a)
If any
mutilated Securities Certificate shall be surrendered to the Securities
Registrar together with such security or indemnity as may be required by the
Securities Registrar to save each of the Trustees harmless, the Administrative
Trustees, or any one of them, on behalf of the Trust, shall execute and make
available for delivery in exchange therefor a new Securities Certificate of like
class, tenor and denomination.
(b)
If the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Securities Certificate and there shall be
delivered to the Securities Registrar such security or indemnity as may be
required by it to save each of the Trustees harmless, then in the absence of
notice that such Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust, shall execute and make available for delivery, and, with respect to
Preferred Securities, the Property Trustee shall authenticate, in exchange for
or in lieu of any such destroyed, lost or stolen Securities Certificate, a new
Securities Certificate of like class, tenor and denomination.
(c)
In
connection with the issuance of any new Securities Certificate under this
Section 5.8
, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
(d)
Any
duplicate Securities Certificate issued pursuant to this
Section 5.8
shall
constitute conclusive evidence of an undivided beneficial interest in the assets
of the Trust corresponding to that evidenced by the mutilated, lost, stolen or
destroyed Securities Certificate, as if originally issued, whether or not the
lost, stolen or destroyed Securities Certificate shall be found at any
time.
(e)
If any
such mutilated, destroyed, lost or stolen Securities Certificate has become or
is about to become due and payable, the Depositor in its discretion may provide
the Property Trustee with the funds to pay such Trust Security and upon
receipt of such funds, the Property Trustee shall pay such Trust Security
instead of issuing a new Securities Certificate.
(f)
The
provisions of this
Section
5.8
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, destroyed, lost or stolen
Securities Certificates.
SECTION
5.9.
Persons
Deemed Holders
.
The
Trustees and the Securities Registrar shall each treat the Person in whose name
any Securities Certificate shall be registered in the Securities Register as the
owner of such Securities Certificate for the purpose of receiving Distributions
and for all other purposes whatsoever, and none of the Trustees and the
Securities Registrar shall be bound by any notice to the contrary.
SECTION
5.10.
Cancellation
.
All
Preferred Securities Certificates surrendered for registration of transfer or
exchange or for payment shall, if surrendered to any Person other than the
Property Trustee, be delivered to the Property Trustee, and any such Preferred
Securities Certificates and Preferred Securities Certificates surrendered
directly to the Property Trustee for any such purpose shall be promptly canceled
by it. The Administrative Trustees may at any time deliver to the Property
Trustee for cancellation any Preferred Securities Certificates previously
delivered hereunder that the Administrative Trustees may have acquired in any
manner whatsoever, and all Preferred Securities Certificates so delivered shall
be promptly canceled by the Property Trustee. No Preferred Securities
Certificates shall be executed and delivered in lieu of or in exchange for any
Preferred Securities Certificates canceled as provided in this
Section
5.10
, except
as expressly permitted by this Trust Agreement. All canceled Preferred
Securities Certificates shall be retained by the Property Trustee in accordance
with its customary practices.
SECTION
5.11.
Ownership
of Common Securities by Depositor
.
(a)
On the
Closing Date, the Depositor shall acquire, and thereafter shall retain,
beneficial and record ownership of the Common Securities. Neither the Depositor
nor any successor Holder of the Common Securities may transfer less than all the
Common Securities, and the Depositor or any such successor Holder may transfer
the Common Securities only (i) in connection with a consolidation or merger
of the Depositor into another Person, or any conveyance, transfer or lease by
the Depositor of its properties and assets substantially as an entirety to any
Person (in which event such Common Securities will be transferred to such
surviving entity, transferee or lessee, as the case may be), pursuant to
Section 8.1 of the Indenture or (ii) to the Depositor or an Affiliate
of the Depositor, in each such case in compliance with applicable law (including
the Securities Act, and applicable state securities and blue sky laws). To the
fullest extent permitted by law, any attempted transfer of the Common Securities
other than as set forth in the immediately preceding sentence shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating substantially "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT."
(b)
Any
Holder of the Common Securities shall be liable for the debts and obligations of
the Trust in the manner and to the extent set forth with respect to the
Depositor and agrees that it shall be subject to all liabilities to which the
Depositor may be subject and, prior to becoming such a Holder, shall deliver to
the Administrative Trustees an instrument of assumption satisfactory to such
Trustees.
SECTION
5.12.
Restricted
Legends
.
(a)
Each
Preferred Security Certificate shall bear a legend in substantially the
following form:
"
[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS
PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS PREFERRED 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 TRUST AGREEMENT,
AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS
PREFERRED 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 PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
HERSHA
STATUTORY TRUST
I OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
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
PREFERRED 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 PREFERRED SECURITIES OR 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
PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
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 PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, OR (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 (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT
OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE
PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES, OR ANY
INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE LIQUIDATION 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 PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
PRINCIPAL OF OR INTEREST ON SUCH PREFERRED SECURITIES, OR ANY INTEREST THEREIN,
AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH PREFERRED 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,
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 PREFERRED SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER
OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE
BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH
SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING
THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE."
(b)
The above
legend shall not be removed from any of the Preferred Securities Certificates
unless there is delivered to the Property Trustee and the Depositor 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 the provisions of the Securities Act and other applicable law. Upon
provision of such satisfactory evidence, one or more of the Administrative
Trustees on behalf of the Trust shall execute and deliver to the Property
Trustee, and the Property Trustee shall deliver, at the written direction of the
Administrative Trustees and the Depositor, Preferred Securities Certificates
that do not bear the legend.
SECTION
5.13.
Form
of Certificate of Authentication.
The
Property Trustee's certificate of authentication shall be in substantially the
following form:
This is
one of the Preferred Securities referred to in the within-mentioned Trust
Agreement.
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Dated:
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JPMorgan
Chase Bank, National Association
,
not in its individual
capacity,
but solely as Property Trustee
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By:
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Authorized
signatory
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ARTICLE
VI.
MEETINGS;
VOTING; ACTS OF HOLDERS
SECTION
6.1.
Notice
of Meetings
.
Notice of
all meetings of the Holders of the Preferred Securities, stating the time, place
and purpose of the meeting, shall be given by the Property Trustee pursuant to
Section 10.8
to each
Holder of Preferred Securities, at such Holder's registered address, at least
fifteen (15) days and not more than ninety (90) days before the meeting. At any
such meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned meeting may be
held as adjourned without further notice.
SECTION
6.2.
Meetings
of Holders of the Preferred Securities
.
(a)
No annual
meeting of Holders is required to be held. The Property Trustee, however, shall
call a meeting of the Holders of the Preferred Securities to vote on any matter
upon the written request of the Holders of at least twenty five percent (25%) in
aggregate Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Preferred Securities to vote on
any matters as to which such Holders are entitled to vote.
(b)
The
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Preferred Securities.
(c)
If a
quorum is present at a meeting, an affirmative vote by the Holders present, in
person or by proxy, holding Preferred Securities representing at least a
Majority in Liquidation Amount of the Preferred Securities held by the Holders
present, either in person or by proxy, at such meeting shall constitute the
action of the Holders of the Preferred Securities, unless this Trust Agreement
requires a lesser or greater number of affirmative votes.
SECTION
6.3.
Voting
Rights
.
Holders
shall be entitled to one vote for each $10,000 of Liquidation Amount represented
by their Outstanding Trust Securities in respect of any matter as to which such
Holders are entitled to vote.
SECTION
6.4.
Proxies,
Etc.
At any
meeting of Holders, any Holder entitled to vote thereat may vote by proxy,
provided,
that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one or
more officers of the Property Trustee. Only Holders of record shall be entitled
to vote. When Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and the
burden of proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution.
SECTION
6.5.
Holder
Action by Written Consent
.
Any
action that may be taken by Holders at a meeting may be taken without a meeting
and without prior notice if Holders holding at least a Majority in Liquidation
Amount of all Preferred Securities entitled to vote in respect of such action
(or such lesser or greater proportion thereof as shall be required by any other
provision of this Trust Agreement) shall consent to the action in writing;
provided,
that
notice of such action is promptly provided to the Holders of Preferred
Securities that did not consent to such action. Any action that may be taken by
the Holders of all the Common Securities may be taken without a meeting and
without prior notice if such Holders shall consent to the action in
writing.
SECTION
6.6.
Record
Date for Voting and Other Purposes
.
Except as
provided in
Section
6.10(a)
, for the
purposes of determining the Holders who are entitled to notice of and to vote at
any meeting or to act by written consent, or to participate in any distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than
ninety (90) days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such
purposes.
SECTION
6.7.
Acts
of Holders
.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Trust Agreement to be given, made 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 otherwise expressly provided
herein, such action shall become effective when such instrument or instruments
are delivered to an Administrative Trustee. 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 Trust Agreement and conclusive in favor of the Trustees, if made
in the manner provided in this
Section
6.7
.
(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 a certificate of a
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 the execution thereof. Where such execution is by a signer
acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Trustee receiving the same deems sufficient.
(c)
The
ownership of Trust Securities shall be proved by the Securities
Register.
(d)
Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Trust Security shall bind every future Holder of the same
Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustees, the
Administrative Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e)
Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust 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 Liquidation Amount.
(f)
If any
dispute shall arise among the Holders or the Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, notice, consent, waiver or other Act of such Holder or Trustee under
this
Article
VI
, then
the determination of such matter by the Property Trustee shall be conclusive
with respect to such matter.
SECTION
6.8.
Inspection
of Records
.
Upon
reasonable written notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by any Holder
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
SECTION
6.9.
Limitations
on Voting Rights
.
(a)
Except as
expressly provided in this Trust Agreement and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Securities Certificates, be
construed so as to constitute the Holders from time to time as partners or
members of an association.
(b)
So long
as any Notes are held by the Property Trustee on behalf of the Trust, the
Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Note Trustee, or
exercise any trust or power conferred on the Property Trustee with respect to
the Notes, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture or waive compliance with any covenant or
condition under Section 10.7 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Notes shall be due
and payable or (iv) consent to any amendment, modification or termination
of the Indenture or the Notes, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities;
provided
,
that
where a consent under the Indenture would require the consent of each holder of
Notes (or each Holder of Preferred Securities) affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities, except by a subsequent vote of the Holders of the Preferred
Securities. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Property Trustee shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that such action shall not
cause the Trust to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes.
(c)
If any
proposed amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would adversely affect in
any material respect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Preferred Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities. Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, it would cause the Trust to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes.
SECTION
6.10.
Acceleration
of Maturity; Rescission of Annulment; Waivers of Past Defaults
.
(a)
For so
long as any Preferred Securities remain Outstanding, if, upon a Note Event of
Default, the Note Trustee fails or the holders of not less than twenty five
percent (25%) in principal amount of the outstanding Notes fail to declare the
principal of all of the Notes to be immediately due and payable, the Holders of
at least twenty five percent (25%) in Liquidation Amount of the Preferred
Securities then Outstanding shall have the right to make such declaration by a
notice in writing to the Property Trustee, the Depositor and the Note Trustee.
At any time after a declaration of acceleration with respect to the Notes has
been made and before a judgment or decree for payment of the money due has been
obtained by the Note Trustee as provided in the Indenture, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities, by written
notice to the Property Trustee, the Depositor and the Note Trustee, may rescind
and annul such declaration and its consequences if:
(i)
the
Depositor has paid or deposited with the Note Trustee a sum sufficient to
pay:
(A)
all
overdue installments of interest on all of the Notes;
(B)
any
accrued Additional Interest on all of the Notes;
(C)
the
principal of and any premium, if any, on any Notes that have become due
otherwise than by such declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Notes; and
(D)
all sums
paid or advanced by the Note Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Note Trustee, the
Property Trustee and their agents and counsel; and
(ii)
all Note
Events of Default, other than the non-payment of the principal of the Notes that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
Upon
receipt by the Property Trustee of written notice requesting such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date;
provided
, that,
unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is ninety (90) days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
ninety (90)-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice that has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this
Section 6.10(a)
.
(b)
For so
long as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Note Event of Default specified in paragraph (a) or (b) of
Section 5.1 of the Indenture, any Holder of Preferred Securities shall have
the right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of
any amounts payable in respect of Notes having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Preferred Securities of such
Holder. Except as set forth in
Section 6.10(a)
and this
Section 6.10(b)
, the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the
Notes.
(c)
Notwithstanding
paragraphs (a) and (b) of this
Section
6.10
, the
Holders of at least a Majority in Liquidation Amount of the Preferred Securities
may, on behalf of the Holders of all the Preferred Securities, waive any Note
Event of Default, except any Note Event of Default arising from the failure to
pay any principal of or any premium, if any, or interest on (including any
Additional Interest) the Notes (unless such Note Event of Default has been cured
and a sum sufficient to pay all matured installments of interest and all
principal and premium, if any, on all Notes due otherwise than by acceleration
has been deposited with the Note Trustee) or a Note Event of Default in respect
of a covenant or provision that under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Note. Upon any
such waiver, such Note Event of Default shall cease to exist and any Note Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of the Indenture; but no such waiver shall affect any subsequent Note
Event of Default or impair any right consequent thereon.
(d)
Notwithstanding
paragraphs (a) and (b) of this
Section
6.10
, the
Holders of at least a Majority in Liquidation Amount of the Preferred Securities
may, on behalf of the Holders of all the Preferred Securities, waive any past
Event of Default and its consequences. Upon such waiver, any 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 Trust Agreement, but no
such waiver shall extend to any subsequent or other Event of Default or impair
any right consequent thereon.
(e)
The
Holders of a Majority in Liquidation Amount of the Preferred Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee in respect of this Trust
Agreement or the Notes or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
provided
,
that,
subject to
Sections
8.5
and
8.7
, the
Property Trustee shall have the right to decline to follow any such direction if
the Property Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Property Trustee in good faith
shall, by an officer or officers of the Property Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability or
be unduly prejudicial to the rights of Holders not party to such direction, and
provided,
further
,
that
nothing in this Trust Agreement shall impair the right of the Property Trustee
to take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction.
ARTICLE
VII.
REPRESENTATIONS
AND WARRANTIES
SECTION
7.1.
Representations
and Warranties of the Property Trustee and the Delaware
Trustee.
The
Property Trustee and the Delaware Trustee, each severally on behalf of and as to
itself, hereby represents and warrants for the benefit of the Depositor and the
Holders that:
(a)
the
Property Trustee is a national banking association, duly organized and validly
existing under the laws of the United States of America;
(b)
the
Property Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(c)
the
Delaware Trustee is a national banking association, duly formed and validly
existing under the laws of the United States;
(d)
the
Delaware Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(e)
this
Trust Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the legal, valid and binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable
against each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general principles of
equity;
(f)
the
execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the respective
Articles of Association or By-laws of the Property Trustee or the Delaware
Trustee, (ii) violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Property Trustee or the Delaware Trustee is a party or by which it
is bound, or (iii) violate any applicable law, governmental rule or
regulation of the United States or the State of Delaware, as the case may be,
governing the banking, trust or general powers of the Property Trustee or the
Delaware Trustee or any order, judgment or decree applicable to the Property
Trustee or the Delaware Trustee;
(g)
neither
the authorization, execution or delivery by the Property Trustee or the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee or the Delaware Trustee contemplated herein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing law of the United States or the State of Delaware governing
the banking, trust or general powers of the Property Trustee or the Delaware
Trustee, as the case may be; and
(h)
to the
best of each of the Property Trustee's and the Delaware Trustee's knowledge,
there are no proceedings pending or threatened against or affecting the Property
Trustee or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal that, individually or in the
aggregate, would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee or the Delaware Trustee, as
the case may be, to enter into or perform its obligations as one of the Trustees
under this Trust Agreement.
SECTION
7.2.
Representations
and Warranties of Depositor.
The
Depositor hereby represents and warrants for the benefit of the Holders
that:
(a)
the
Depositor is a limited partnership duly organized, validly existing and in good
standing under the laws of its state of organization;
(b)
the
Depositor has full power, authority and legal right to execute, deliver and
perform its obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this Trust
Agreement;
(c)
this
Trust Agreement has been duly authorized, executed and delivered by the
Depositor and constitutes the legal, valid and binding agreement of the
Depositor enforceable against the Depositor in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and similar laws
affecting creditors' rights generally and to general principles of equity
(regardless of whether the issue of enforceability is considered in a proceeding
at law or in equity);
(d)
the
Securities Certificates issued at the Closing Date on behalf of the Trust have
been duly authorized and will have been duly and validly executed, issued and
delivered by the applicable Trustees pursuant to the terms and provisions of,
and in accordance with the requirements of, this Trust Agreement and the Holders
will be, as of such date, entitled to the benefits of this Trust
Agreement;
(e)
the
execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Depositor and such execution, delivery and performance will not (i) violate
the organizational documents of the Depositor or (ii) violate any
applicable law, governmental rule or regulation governing the Depositor or any
material portion of its property or any order, judgment or decree applicable to
the Depositor or any material portion of its property;
(f)
neither
the authorization, execution or delivery by the Depositor of this Trust
Agreement nor the consummation of any of the transactions by the Depositor
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to any
governmental authority or agency under any existing law governing the Depositor
or any material portion of its property, other than those that have been made or
obtained and other than any required under securities laws; and
(g)
there are
no proceedings pending or, to the Depositor's knowledge, threatened against or
affecting the Depositor or any material portion of its property in any court or
before any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Depositor, as the
case may be, to enter into or perform its obligations under this Trust
Agreement.
ARTICLE
VIII.
SECTION
8.1.
Number
of Trustees.
The
number of Trustees shall be four (4);
provided
,
that the
Property Trustee and the Delaware Trustee may be the same Person, in which case
the number of Trustees shall be three (3). The number of Trustees may be
increased or decreased by Act of the Holder of the Common Securities subject to
Sections
8.2
,
8.3
, and
8.4
. The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust.
SECTION 8.2.
Property
Trustee Required.
There
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a corporation organized and doing
business under the laws of the United States or of any state thereof, authorized
to exercise corporate trust powers, having a combined capital and surplus of at
least fifty million dollars ($50,000,000), subject to supervision or examination
by federal or state authority and having an office within the United States. If
any such Person publishes reports of condition at least annually pursuant to law
or to the requirements of its supervising or examining authority, then for the
purposes of this
Section
8.2
, the
combined capital and surplus of such Person 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 Property Trustee shall cease to be eligible in
accordance with the provisions of this
Section
8.2
, it
shall resign immediately in the manner and with the effect hereinafter specified
in this
Article
VIII
.
SECTION
8.3.
Delaware
Trustee Required.
(a)
If
required by the Delaware Statutory Trust Act, there shall at all times be a
Delaware Trustee with respect to the Trust Securities. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity that has its
principal place of business in the State of Delaware, otherwise meets the
requirements of applicable Delaware law and shall act through one or more
persons authorized to bind such entity. If at any time the Delaware Trustee
shall cease to be eligible in accordance with the provisions of this
Section
8.3
, it
shall resign immediately in the manner and with the effect hereinafter specified
in this
Article
VIII
. The
Delaware Trustee shall have the same rights, privileges and immunities as the
Property Trustee.
(b)
The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Statutory Trust
Act and for taking such actions as are required to be taken by a Delaware
trustee under the Delaware Statutory Trust Act. The duties (including fiduciary
duties), liabilities and obligations of the Delaware Trustee shall be limited to
(a) accepting legal process served on the Trust in the State of Delaware and (b)
the execution of any certificates required to be filed with the Secretary of
State of the State of Delaware that the Delaware Trustee is required to execute
under Section 3811 of the Delaware Statutory Trust Act and there shall be no
other duties (including fiduciary duties) or obligations, express or implied, at
law or in equity, of the Delaware Trustee.
SECTION
8.4.
Appointment
of Administrative Trustees.
(a)
There
shall at all times be one or more Administrative Trustees hereunder with respect
to the Trust Securities. Each Administrative Trustee shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity. Each of the individuals
identified as an
"
Administrative
Trustee"
in the
preamble of this Trust Agreement hereby accepts his or her appointment as
such.
(b)
Except
where a requirement for action by a specific number of Administrative Trustees
is expressly set forth in this Trust Agreement, any act required or permitted to
be taken by, and any power of the Administrative Trustees may be exercised by,
or with the consent of, any one such Administrative Trustee. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section 8.11
, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION
8.5.
Duties
and Responsibilities of the Trustees.
(a)
The
rights, immunities, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and there shall be no other duties (including
fiduciary duties) or obligations, express or implied, at law or in equity, of
the Trustees;
provided,
however
, that if
an Event of Default known to the Property Trustee has occurred and is
continuing, the Property Trustee shall, prior to the receipt of directions, if
any, from the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, exercise such of the rights and powers vested in it by
this Trust Agreement, 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. Notwithstanding the foregoing, no provision of
this Trust Agreement shall require any of the Trustees 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 or their rights or
powers, if it or they 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 herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this
Section
8.5
. Nothing
in this Trust Agreement shall be construed to release any Administrative Trustee
from liability for his or her own negligent action, negligent failure to act; or
his or her own willful misconduct. To the extent that, at law or in equity, a
Trustee has duties and liabilities relating to the Trust or to the Holders, such
Trustee shall not be liable to the Trust or to any Holder for such Trustee's
good faith reliance on the provisions of this Trust Agreement. The provisions of
this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Depositor and the Holders to replace such other duties and liabilities of
the Trustees.
(b)
All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This
Section 8.5(b)
does not
limit the liability of the Trustees expressly set forth elsewhere in this Trust
Agreement.
(c)
No
provisions of this Trust Agreement shall be construed to relieve the Property
Trustee from liability with respect to matters that are within the authority of
the Property Trustee under this Trust Agreement for its own negligent action,
negligent failure to act or willful misconduct, except that:
(i)
the
Property Trustee shall not be liable for any error or judgment made in good
faith by an authorized officer of the Property Trustee, unless it shall be
proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
(ii)
the
Property 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 Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee hereunder or under the Indenture, or
exercising any trust or power conferred upon the Property Trustee under this
Trust Agreement;
(iii)
the
Property Trustee's sole duty with respect to the custody, safe keeping and
physical preservation of the Notes and the Payment Account shall be to deal with
such Property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement;
(iv)
the
Property Trustee shall not be liable for any interest on any money received by
it except as it may otherwise agree in writing with the Depositor; and money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the Property Trustee
pursuant to
Section 3.1
and
except to the extent otherwise required by law; and
(v)
the
Property Trustee shall not be responsible for monitoring the compliance by the
Administrative Trustees or the Depositor with their respective duties under this
Trust Agreement, nor shall the Property Trustee be liable for the default or
misconduct of any other Trustee or the Depositor.
SECTION
8.6.
Notices
of Defaults.
(a)
Within
ninety (90) days after the occurrence of a default actually known to the
Property Trustee, the Property Trustee shall transmit notice of such default to
the Holders, the Administrative Trustees and the Depositor, unless such default
shall have been cured or waived. For the purpose of this
Section
8.6
, the
term "
default
"
means
any event that is, or after notice or lapse of time or both would become, an
Event of Default.
(b)
The
Property Trustee shall not be charged with knowledge of any Event of Default
unless either (i) a Responsible Officer of the Property Trustee shall have
actual knowledge or (ii) the Property Trustee shall have received written notice
thereof from the Depositor, an Administrative Trustee or a Holder.
(c)
The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Notes.
SECTION
8.7.
Certain
Rights of Property Trustee.
Subject
to the provisions of
Section 8.5
:
(a)
the
Property Trustee may conclusively rely and shall be protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, Opinion of Counsel, certificate, written representation of
a Holder or transferee, certificate of auditors or any other resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, debenture, note, other evidence of indebtedness
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 Trust Agreement the Property
Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Trust Agreement the
Property Trustee finds a provision ambiguous or inconsistent with any other
provisions contained herein or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to any
matter as to which the Holders of the Preferred Securities are entitled to vote
under the terms of this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting the Depositor's written instruction as to the
course of action to be taken and the Property Trustee shall take such action, or
refrain from taking such action, as the Property Trustee shall be instructed in
writing to take, or to refrain from taking, by the Depositor;
provided
, that if
the Property Trustee does not receive such instructions of the Depositor within
ten (10) Business Days after it has delivered such notice or such reasonably
shorter period of time set forth in such notice, the Property Trustee may, but
shall be under no duty to, take such action, or refrain from taking such action,
as the Property Trustee shall deem advisable and in the best interests of the
Holders, in which event the Property Trustee shall have no liability except for
its own negligence, bad faith or willful misconduct;
(c)
any
direction or act of the Depositor contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate unless otherwise expressly
provided herein;
(d)
any
direction or act of an Administrative Trustee contemplated by this Trust
Agreement shall be sufficiently evidenced by a certificate executed by such
Administrative Trustee and setting forth such direction or act;
(e)
the
Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any re-recording,
re-filing or re-registration thereof;
(f)
the
Property Trustee may consult with counsel (which counsel may be counsel to the
Property Trustee, the Depositor or any of its Affiliates, and may include any of
its employees) and the advice of such 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 and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g)
the
Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Agreement at the request or direction of any
of the Holders pursuant to this Trust Agreement, unless such Holders shall have
offered to the Property Trustee reasonable security or indemnity 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 Property
Trustee;
provided,
however,
that
nothing contained in this
Section
8.7(g)
shall be
construed to relieve the Property Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers in it vested by
this Trust Agreement; provided, further, that nothing contained in this
Section
8.7(g)
shall
prevent the Property Trustee from exercising its rights under
Section
8.11
hereof;
(h)
the
Property 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, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Property Trustee
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Property Trustee shall determine to make such inquiry
or investigation, it shall be entitled, upon reasonable notice, to examine the
books, records and premises of the Depositor, personally or by agent or attorney
during regular business hours;
(i)
the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents, attorneys,
custodians or nominees and the Property Trustee shall not be responsible for any
negligence or misconduct on the part of any such agent, attorney, custodian or
nominee appointed with due care by it hereunder;
(j)
whenever
in the administration of this Trust Agreement the Property Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under this Trust Agreement in respect of such
remedy, right or action), (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received and
(iii) shall be protected in acting in accordance with such
instructions;
(k)
except as
otherwise expressly provided by this Trust Agreement, the Property Trustee shall
not be under any obligation to take any action that is discretionary under the
provisions of this Trust Agreement;
(l)
without
prejudice to any other rights available to the Property Trustee under applicable
law, when the Property Trustee incurs expenses or renders services in connection
with a Bankruptcy Event, 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 law or law relating
to creditors rights generally; and
(m)
whenever
in the administration of this Trust Agreement the Property Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely on an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor.
No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation.
SECTION
8.8.
Delegation
of Power.
Any
Trustee may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 its, his or her power for the
purpose of executing any documents contemplated in
Section 2.5
. The
Trustees shall have power to delegate from time to time to such of their number
or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
SECTION
8.9.
May
Hold Securities.
Any
Trustee or any other agent of any Trustee or the Trust, in its individual or any
other capacity, may become the owner or pledgee of Trust Securities and except
as provided in the definition of the term
"
Outstanding"
in
Article
I
, may
otherwise deal with the Trust with the same rights it would have if it were not
an Trustee or such other agent.
SECTION
8.10.
Compensation;
Reimbursement; Indemnity.
The
Depositor agrees:
(a)
to pay to
the Trustees from time to time such reasonable compensation for all services
rendered by them hereunder as may be agreed by the Depositor and the Trustees
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);
(b)
to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their gross negligence, bad
faith or willful misconduct; and
(c)
to the
fullest extent permitted by applicable law, to indemnify and hold harmless
(i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any Trustee
or any Affiliate of any Trustee and (iv) any employee or agent of the Trust
(referred to herein as an
"Indemnified
Person"
) from
and against any loss, damage, liability, tax (other than income, franchise or
other taxes imposed on amounts paid pursuant to
Section
8.10(a)
or
(b)
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 the Trust hereunder,
including the advancement of funds to cover 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.
The Trust
shall have no payment, reimbursement or indemnity obligations to the Trustees
under this
Section
8.10
. The
provisions of this
Section 8.10
shall
survive the termination of this Trust Agreement and the earlier removal or
resignation of any Trustee.
No
Trustee may claim any Lien on any Trust Property whether before or after
termination of the Trust as a result of any amount due pursuant to this
Section 8.10
.
To the
fullest extent permitted by law, in no event shall the Property Trustee and the
Delaware 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.
In no
event shall the Property Trustee and the Delaware 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 Trust Agreement.
SECTION
8.11.
Resignation
and Removal; Appointment of Successor.
(a)
No
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this
Article
VIII
shall
become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of
Section 8.12
.
(b)
A Trustee
may resign at any time by giving written notice thereof to the Depositor and, in
the case of the Property Trustee and the Delaware Trustee, to the
Holders.
(c)
Unless an
Event of Default shall have occurred and be continuing, the Property Trustee or
the Delaware Trustee, or both of them, may be removed (with or without cause) at
any time by Act of the Holder of Common Securities. If an Event of Default shall
have occurred and be continuing, the Property Trustee or the Delaware Trustee,
or both of them, may be removed (with or without cause) at such time by Act of
the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, delivered to the removed Trustee (in its individual capacity and on
behalf of the Trust). An Administrative Trustee may be removed (with or without
cause) only by Act of the Holder of the Common Securities at any
time.
(d)
If any
Trustee shall resign, be removed or become incapable of acting as Trustee, or if
a vacancy shall occur in the office of any Trustee for any reason, at a time
when no Event of Default shall have occurred and be continuing, the Holder of
the Common Securities, by Act of the Holder of the Common Securities, shall
promptly appoint a successor Trustee or Trustees, and such successor Trustee and
the retiring Trustee shall comply with the applicable requirements of
Section
8.12
. If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when an Event of Default shall have occurred and
be continuing, the Holders of the Preferred Securities, by Act of the Holders of
a Majority in Liquidation Amount of the Preferred Securities, shall promptly
appoint a successor Property Trustee or Delaware Trustee, and such successor
Property Trustee or Delaware Trustee and the retiring Property Trustee or
Delaware Trustee shall comply with the applicable requirements of
Section
8.12
. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when an Event of Default shall have occurred
and be continuing, the Holder of the Common Securities by Act of the Holder of
Common Securities shall promptly appoint a successor Administrative Trustee and
such successor Administrative Trustee and the retiring Administrative Trustee
shall comply with the applicable requirements of
Section
8.12
. If no
successor Trustee shall have been so appointed by the Holder of the Common
Securities or Holders of the Preferred Securities, as the case may be, and
accepted appointment in the manner required by
Section
8.12
within
thirty (30) days after the giving of a notice of resignation by a Trustee, the
removal of a Trustee, or a Trustee becoming incapable of acting as such Trustee,
any Holder who has been a Holder of Preferred Securities for at least six (6)
months may, on behalf of himself and all others similarly situated, and any
resigning Trustee may, in each case, at the expense of the Depositor, petition
any court of competent jurisdiction for the appointment of a successor
Trustee
.
(e)
The
Depositor shall give notice of each resignation and each removal of the Property
Trustee or the Delaware Trustee and each appointment of a successor Property
Trustee or Delaware Trustee to all Holders in the manner provided in
Section
10.8
. Each
notice shall include the name of the successor Property Trustee or Delaware
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
(f)
Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holder of Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (i) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (ii) otherwise by the Holder of the Common
Securities (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in
Sections
8.3
and
8.4
).
(g)
Upon the
appointment of a successor Delaware Trustee, such successor Delaware Trustee
shall file a Certificate of Amendment to the Certificate of Trust in accordance
with Section 3810 of the Delaware Statutory Trust Act.
SECTION
8.12.
Acceptance
of Appointment by Successor.
(a)
In case
of the appointment hereunder of a successor Trustee, each successor Trustee
shall execute and deliver to the Depositor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and each 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 request of
the Trust or any successor Trustee such retiring Trustee shall, upon payment of
its charges, duly assign, transfer and deliver to such successor Trustee all
Trust Property, all proceeds thereof and money held by such retiring Trustee
hereunder with respect to the Trust Securities and the Trust.
(b)
Upon
request of any such successor Trustee, the Trust (or the retiring Trustee if
requested by the Depositor) shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the preceding paragraph.
(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
VIII
.
SECTION
8.13.
Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Property Trustee or the Delaware 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 such Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Trustee, shall be the successor of such 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
VIII
.
SECTION
8.14.
Not
Responsible for Recitals, Issuance of Securities, or
Representations.
The
recitals contained herein and in the Securities Certificates shall be taken as
the statements of the Trust and the Depositor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the title to, or value or condition of, the property of the Trust or any
part thereof, nor as to the validity or sufficiency of this Trust Agreement, the
Notes or the Trust Securities. The Trustees shall not be accountable for the use
or application by the Depositor of the proceeds of the Notes. It is expressly
understood and agreed by the parties hereto that insofar as any document,
agreement or certificate is executed on behalf of the Trust by any Trustee (i)
such document, agreement or certificate is executed and delivered by such
Trustee, not in its individual capacity but solely as Trustee under this Trust
Agreement in the exercise of the powers and authority conferred and vested in
it, (ii) each of the representations, undertakings and agreements made on the
part of the Trust is made and intended not as individual capacity but is made
and intended not as representations, warranties, covenants, undertakings and
agreements by any Trustee in its individual capacity but is made and intended
for the purpose of binding only the Trust and (iii) under no circumstances shall
any Trustee in its individual capacity be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Trust under this Trust Agreement or any other document, agreement or
certificate.
SECTION
8.15.
Property
Trustee May File Proofs of Claim.
(a)
In case
of any Bankruptcy Event (or event that with the passage of time would become a
Bankruptcy Event) relative to the Trust or any other obligor upon the Trust
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Trust for the payment of
any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or
otherwise:
(i)
to file
and prove a claim for the whole amount of any Distributions owing and unpaid in
respect of the Trust Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Property
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
(ii)
to
collect and receive any monies 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 proceeding is hereby authorized by each Holder to
make such payments to the Property Trustee and, in the event the Property
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Property Trustee first any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
(b)
Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION
8.16.
Reports
to the Property Trustee.
(a)
The
Depositor and the Administrative Trustees shall deliver to the Property Trustee,
not later than forty five (45) days after the end of each of the first three
fiscal quarters of the Depositor and not later than ninety (90) days after the
end of each fiscal year of the Trust ending after the date of this Trust
Agreement, an Officers' Certificate covering the preceding fiscal year, stating
whether or not to the knowledge of the signers thereof the Depositor and the
Trust are in default in the performance or observance of any of the terms,
provisions and conditions of this Trust Agreement (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Depositor or
the Trust shall be in default, specifying all such defaults and the nature and
status thereof of which they have knowledge.
(b)
The
Depositor shall furnish (i) to the Property Trustee; Merrill Lynch, Pierce,
Fenner & Smith, Incorporated, c/o Cohen Bros. Securities LLC, 1818
Market Street, 28
th
Floor,
Philadelphia, Pennsylvania 19103 or such other address as designated by Merrill
Lynch International; and (iii) any Owner of the Preferred Securities reasonably
identified to the Depositor and the Trust (which identification may be made
either by such Owner or by Cohen Bros. Securities, LLC) a duly completed and
executed certificate substantively and substantially in the form attached hereto
as
Exhibit
F
,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Depositor not later than
forty five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Depositor and not later than ninety (90) days after the
end of each fiscal year of the Depositor.
The
Property Trustee shall obtain all reports, certificates and information, which
it is entitled to obtain under each of the Operative Documents.
ARTICLE
IX.
TERMINATION,
LIQUIDATION AND MERGER
SECTION
9.1.
Dissolution
Upon Expiration Date.
Unless
earlier dissolved, the Trust shall automatically dissolve on May 6, 2040 (the
"
Expiration
Date"
), and
the Trust Property shall be liquidated in accordance with
Section 9.4
.
SECTION
9.2.
Early
Termination.
The first
to occur of any of the following events is an
"
Early
Termination Event"
, upon
the occurrence of which the Trust shall be dissolved:
(a)
the
occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor, in its capacity as the Holder of the Common
Securities, unless the Depositor shall have transferred the Common Securities as
provided by
Section
5.11
, in
which case this provision shall refer instead to any such successor Holder of
the Common Securities;
(b)
the
written direction to the Property Trustee from the Holder of the Common
Securities at any time to dissolve the Trust and, after satisfaction of any
liabilities of the Trust as required by applicable law, to distribute the Notes
to Holders in exchange for the Preferred Securities (which direction is optional
and wholly within the discretion of the Holder of the Common
Securities);
(c)
the
redemption of all of the Preferred Securities in connection with the payment at
maturity or redemption of all the Notes; and
(d)
the entry
of an order for dissolution of the Trust by a court of competent
jurisdiction.
SECTION
9.3.
Termination.
The
respective obligations and responsibilities of the Trustees and the Trust shall
terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Trust pursuant to
Section 9.4
, or upon
the redemption of all of the Trust Securities pursuant to
Section 4.2
;
(b) the satisfaction of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Holders.
SECTION
9.4.
Liquidation.
(a)
If an
Early Termination Event specified in
Section
9.2(a)
,
(b)
or
(d)
occurs
or upon the Expiration Date, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee shall determine to be possible
by distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Holder a Like Amount of Notes, subject to
Section 9.4(d)
. Notice
of liquidation shall be given by the Property Trustee not less than thirty (30)
nor more than sixty (60) days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities Register.
All such notices of liquidation shall:
(i)
state the
Liquidation Date;
(ii)
state
that from and after the Liquidation Date, the Trust Securities will no longer be
deemed to be Outstanding and (subject to
Section
9.4(d)
) any
Securities Certificates not surrendered for exchange will be deemed to represent
a Like Amount of Notes; and
(iii)
provide
such information with respect to the mechanics by which Holders may exchange
Securities Certificates for Notes, or if
Section 9.4(d)
applies,
receive a Liquidation Distribution, as the Property Trustee shall deem
appropriate.
(b)
Except
where
Section
9.2(c)
or
9.4(d)
applies,
in order to effect the liquidation of the Trust and distribution of the Notes to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date for
such distribution (which shall not be more than forty five (45) days prior to
the Liquidation Date nor prior to the date on which notice of such liquidation
is given to the Holders) and establish such procedures as it shall deem
appropriate to effect the distribution of Notes in exchange for the Outstanding
Securities Certificates.
(c)
Except
where
Section
9.2(c)
or
9.4(d)
applies,
after the Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) certificates representing a Like Amount of
Notes will be issued to Holders of Securities Certificates, upon surrender of
such Certificates to the exchange agent for exchange, (iii) the Depositor shall
use its reasonable best efforts to have the Notes listed on the New York
Stock Exchange or on such other exchange, interdealer quotation system or
self-regulatory organization on which the Preferred Securities are then listed,
if any, (iv) Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Notes bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid Distributions on such
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Securities Certificates with respect to such Notes) and
(v) all rights of Holders holding Trust Securities will cease, except the right
of such Holders to receive Notes upon surrender of Securities
Certificates.
(d)
Notwithstanding
the other provisions of this
Section 9.4
, if
distribution of the Notes in the manner provided herein is determined by the
Property Trustee not to be permitted or practical, the Trust Property shall be
liquidated, and the Trust shall be wound up by the Property Trustee in such
manner as the Property Trustee determines. In such event, Holders will be
entitled to receive out of the assets of the Trust available for distribution to
Holders, after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the
"
Liquidation
Distribution"
). If,
upon any such winding up the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a
pro
rata
basis
(based upon Liquidation Amounts). The Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such winding up
pro
rata
(based
upon Liquidation Amounts) with Holders of all Trust Securities, except that, if
an Event of Default has occurred and is continuing, the Preferred Securities
shall have a priority over the Common Securities as provided in
Section
4.3
.
SECTION
9.5.
Mergers,
Consolidations, Amalgamations or Replacements of Trust.
The Trust
may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to, any Person except pursuant to this
Article
IX
. At the
request of the Holders of the Common Securities, without the consent of the
Holders of the Preferred Securities, the Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State;
provided
,
that:
(a)
such
successor entity either (i) expressly assumes all of the obligations of the
Trust under this Trust Agreement with respect to the Preferred Securities or
(ii) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (such other Securities,
the
"Successor
Securities"
) so long
as the Successor Securities have the same priority as the Preferred Securities
with respect to distributions and payments upon liquidation, redemption and
otherwise;
(b)
a
trustee of such successor entity possessing substantially the same powers and
duties as the Property Trustee is appointed to hold the Notes;
(c)
if the
Preferred Securities or the Notes are rated, such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities or the Notes (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization that
then assigns a rating to the Preferred Securities or the Notes;
(d)
if the
Preferred Securities are listed, any Successor Securities will be listed upon
notice of issuance, on any national securities exchange or interdealer quotation
system on which the Preferred Securities are then listed, if any;
(e)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any material
respect;
(f)
such
successor entity has a purpose substantially identical to that of the
Trust;
(g)
prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Depositor has received an Opinion of Counsel to the effect that
(i) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect; (ii) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act; and (iii) following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Trust (or the successor entity) will continue to be classified as a
grantor trust for U.S. federal income tax purposes; and
(h)
the
Depositor or its permitted transferee owns all of the common securities of such
successor entity.
Notwithstanding
the foregoing, the Trust shall not, except with the consent of Holders of all of
the Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other entity to consolidate,
amalgamate, merge with or into, or replace, the Trust if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes or
cause the Notes to be treated as other than indebtedness of the Depositor for
United States federal income tax purposes.
SECTION
10.1.
Limitation
of Rights of Holders.
Except as
set forth in
Section
9.2
, the
death, bankruptcy, termination, dissolution or incapacity of any Person having
an interest, beneficial or otherwise, in Trust Securities shall not operate to
terminate this Trust Agreement, nor annul, dissolve or terminate the Trust nor
entitle the legal representatives or heirs of such Person or any Holder for such
Person, to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION
10.2.
Agreed
Tax Treatment of Trust and Trust Securities.
The
parties hereto and, by its acceptance or acquisition of a Trust Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Trust Security intend and agree to treat the Trust
as a grantor trust for United States federal, state and local tax purposes, and
to treat the Trust Securities (including all payments and proceeds with respect
to such Trust Securities) as undivided beneficial ownership interests in the
Trust Property (and payments and proceeds therefrom, respectively) for United
States federal, state and local tax purposes and to treat the Notes as
indebtedness of the Depositor for United States federal, state and local tax
purposes. The provisions of this Trust Agreement shall be interpreted to further
this intention and agreement of the parties set forth in this
Section
10.2
.
SECTION
10.3.
Amendment.
(a)
This
Trust Agreement may be amended from time to time by the Property Trustee, the
Administrative Trustees and the Holder of all the Common Securities, without the
consent of any Holder of the Preferred Securities, (i) to cure any
ambiguity, correct or supplement any provision herein that may be defective or
inconsistent with any other provision herein, or to make or amend any other
provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will neither be taxable as a corporation nor be classified as other than a
grantor trust for United States federal income tax purposes at all times that
any Trust Securities are Outstanding or to ensure that the Notes are treated as
indebtedness of the Depositor for United States federal income tax purposes, or
to ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act or (iii) to add to the covenants,
restrictions or obligations of the Depositor;
provided
, that in
the case of clauses (i), (ii) or (iii), such action shall not adversely affect
in any material respect the interests of any Holder.
(b)
Except as
provided in
Section 10.3(c)
, any
provision of this Trust Agreement may be amended by the Property Trustee, the
Administrative Trustees and the Holder of all of the Common Securities and with
(i) the consent of Holders of at least a Majority in Liquidation Amount of
the Preferred Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not cause the Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes or affect the treatment of the Notes as
indebtedness of the Depositor for United States federal income tax purposes or
affect the Trust's exemption from status (or from any requirement to register)
as an "investment company" under the Investment Company Act.
(c)
Notwithstanding
any other provision of this Trust Agreement, without the consent of each Holder,
this Trust Agreement may not be amended to (i) change the accrual rate,
amount, currency or timing of any Distribution on or the redemption price of the
Trust Securities or otherwise adversely affect the amount of any Distribution or
other payment required to be made in respect of the Trust Securities as of a
specified date, (ii) restrict or impair the right of a Holder to institute
suit for the enforcement of any such payment on or after such date, (iii) reduce
the percentage of aggregate Liquidation Amount of Outstanding Preferred
Securities, the consent of whose Holders is required for any such amendment, or
the consent of whose Holders is required for any waiver of compliance with any
provision of this Trust Agreement or of defaults hereunder and their
consequences provided for in this Trust Agreement, (iv) impair or adversely
affect the rights and interests of the Holders in the Trust Property, or permit
the creation of any Lien on any portion of the Trust Property, or (v) modify the
definition of "Outstanding," this
Section
10.3(c)
,
Sections
4.1
,
4.2
,
4.3
,
6.10(e)
or
Article
IX
.
(d)
Notwithstanding
any other provision of this Trust Agreement, no Trustee shall enter into or
consent to any amendment to this Trust Agreement that would cause the Trust to
be taxable as a corporation or to be classified as other than a grantor trust
for United States federal income tax purposes or that would cause the Notes to
fail or cease to be treated as indebtedness of the Depositor for United States
federal income tax purposes or that would cause the Trust to fail or cease to
qualify for the exemption from status (or from any requirement to register) as
an "investment company" under the Investment Company Act.
(e)
If any
amendment to this Trust Agreement is made, the Administrative Trustees or the
Property Trustee shall promptly provide to the Depositor and the Note Trustee a
copy of such amendment.
(f)
No
Trustee shall be required to enter into any amendment to this Trust Agreement
that affects its own rights, duties or immunities under this Trust Agreement.
The Trustees shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement and all conditions precedent herein provided for
relating to such action have been met.
(g)
No
amendment or modification to this Trust Agreement that adversely affects in any
material respect the rights, duties, liabilities, indemnities or immunities of
the Delaware Trustee hereunder shall be permitted without the prior written
consent of the Delaware Trustee.
SECTION
10.4.
Separability.
If any
provision in this Trust Agreement or in the Securities Certificates 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
10.5.
Governing
Law.
THIS
TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE
TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND
THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAWS PROVISIONS.
SECTION
10.6.
Successors.
This
Trust Agreement shall be binding upon and shall inure to the benefit of any
successor to the Depositor, the Trust and any Trustee, including any successor
by operation of law. Except in connection with a transaction involving the
Depositor that is permitted under
Article
VIII
of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION
10.7.
Headings.
The
Article and Section headings are for convenience only and shall not affect
the construction of this Trust Agreement
SECTION
10.8.
Reports,
Notices and Demands
.
(a)
Any
report, notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon any
Holder or the Depositor may be given or served in writing delivered in person,
or by reputable, overnight courier, by telecopy or by deposit thereof,
first-class postage prepaid, in the United States mail, addressed, (a) in
the case of a Holder of Preferred Securities, to such Holder as such Holder's
name and address may appear on the Securities Register; and (b) in the case
of the Holder of all the Common Securities or the Depositor, to Hersha
Hospitality Trust
510
Walnut Street, 9th Floor
,
Philadelphia,
PA 19106,
Attention:
Mr.
Parikh, or to such other address as may be specified in a written notice by the
Holder of all the Common Securities or the Depositor, as the case may be, to the
Property Trustee. Such report, notice, demand or other communication to or upon
a Holder or the Depositor shall be deemed to have been given when received in
person, within one (1) Business Day following delivery by overnight courier,
when telecopied with receipt confirmed, or within three (3) Business Days
following delivery by mail, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
(b)
Any
notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Property
Trustee, the Delaware Trustee, the Administrative Trustees or the Trust shall be
given in writing by deposit thereof, first-class postage prepaid, in the U.S.
mail, personal delivery or facsimile transmission, addressed to such Person as
follows: (i) with respect to the Property Trustee to JPMorgan Chase Bank,
National Association, 600 Travis, 50
th
Floor,
Houston, Texas 77002, Attention: Institutional Trust Services—Hersha Statutory
Trust I, facsimile no. (713) 216-2101, (ii) with respect to the Delaware
Trustee, to Chase Bank USA, National Association, 500 Stanton Christiana Road,
Building 4 (3
rd
Floor),
Newark, Delaware 19713, Attention: Institutional Trust Services—Hersha Statutory
Trust I, facsimile no. (302) 552-6280; (iii) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Hersha Statutory Trust
I
,
" and
(iv) with respect to the Trust, to its principal executive office specified in
Section
2.2
, with a
copy to the Property Trustee. Such notice, demand or other communication to or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Trust, the Property Trustee or the Administrative
Trustees.
SECTION
10.9.
Agreement
Not to Petition.
Each of
the Trustees and the Depositor agree for the benefit of the Holders that, until
at least one year and one day after the Trust has been terminated in accordance
with
Article
IX
, they
shall not file, or join in the filing of, a petition against the Trust under any
Bankruptcy Law or otherwise join in the commencement of any proceeding against
the Trust under any Bankruptcy Law. If the Depositor takes action in violation
of this
Section 10.9
, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the applicable bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Trust may assert.
SECTION
10.10.
Counterparts.
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.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Trust Agreement as of the day and year first above written.
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Hersha
Hospitality Limited Partnership,
as
Depositor
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By:
Hersha Hospitality Trust, its General Partner
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By:
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Name:
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Title:
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JPMorgan
Chase Bank, National Association,
as
Property Trustee
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Chase
Bank USA, National Association
,
as Delaware Trustee
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Administrative
Trustee
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Administrative
Trustee
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Name:
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Name:
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Exhibit
A
CERTIFICATE
OF TRUST
OF
Hersha
Statutory Trust I
This
Certificate of Trust of Hersha Statutory Trust I (the
"Trust"
) is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustees, to form a statutory trust under the Delaware Statutory Trust Act (12
Del.
C.
§3801
et
seq
.) (the
"Act"
).
1.
Name
. The
name of the statutory trust formed by this Certificate of Trust is: Hersha
Statutory Trust I.
2.
Delaware
Trustee
. The
name and business address of the trustee of the Trust with its principal place
of business in the State of Delaware are:
Chase
Bank USA, National Association
c/o
JPMorgan Chase Bank, N.A.
500
Stanton Christiana Road, OPS4/3
rd
Floor
Newark,
Delaware 19713
Attention:
Institutional Trust Services.
3.
Effective
Date
. This
Certificate of Trust shall be effective upon its filing with the Secretary of
State of the State of Delaware.
IN
WITNESS WHEREOF, the undersigned have duly executed this Certificate of Trust in
accordance with Section 3811(a)(1) of the Act.
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JPMorgan
Chase Bank, National Association
,
not in its individual capacity, but solely as Property
Trustee
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By:
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Name:
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Title:
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Chase
Bank USA, National Association
,
not
in its individual capacity, but solely as Delaware
Trustee
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By:
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Name:
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Title:
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Exhibit
B
[FORM
OF COMMON SECURITIES CERTIFICATE]
THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT
IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT
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Certificate
Number
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Number
of Common Securities:
774
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C-___
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Certificate
Evidencing Common Securities
of
Hersha
Statutory Trust I
Common
Securities
(liquidation
amount $1,000 per Common Security)
Hersha
Statutory Trust I, a statutory trust created under the laws of the State of
Delaware (the
"Trust"
), hereby
certifies that Hersha Hospitality Limited Partnership, a Virginia limited
partnership (the
"Holder"
) is the
registered owner of 774 common securities of the Trust representing undivided
common beneficial interests in the assets of the Trust and designated the Hersha
Statutory Trust I Common Securities (liquidation amount $1,000 per Common
Security) (the
"Common
Securities"
). Except
in accordance with
Section 5.11
of the
Trust Agreement (as defined below), the Common Securities are not transferable
and, to the fullest extent permitted by law, any attempted transfer hereof other
than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of May 13, 2005 as the same may be amended from time to time
(the
"Trust
Agreement"
), among
Hersha Hospitality Limited Partnership
,
as
Depositor, JPMorgan Chase Bank, National Association, as Property Trustee, Chase
Bank USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and the Holders, from time to time, of Trust Securities. The Trust
will furnish a copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and is
entitled to the benefits thereunder.
This
Common Securities Certificate shall be governed by and construed in accordance
with the laws of the State of Delaware.
Terms
used but not defined herein have the meanings set forth in the Trust
Agreement.
In
Witness Whereof
, one of
the Administrative Trustees of the Trust has executed on behalf of the Trust
this certificate this __ day of _______________, 200__.
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Hersha
Statutory Trust I
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By:
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Name:
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Administrative
Trustee
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Exhibit
C
[FORM
OF PREFERRED SECURITIES CERTIFICATE]
"
[
IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS
PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST
AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF
THIS PREFERRED 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 PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
HERSHA
STATUTORY TRUST
I
OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
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
PREFERRED 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 PREFERRED SECURITIES OR 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 PREFERRED SECURITIES IS HEREBY
NOTIFIED THAT THE SELLER OF THE PREFERRED 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 PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, OR (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 (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT
OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE
PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES, OR ANY
INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE LIQUIDATION 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 PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
PRINCIPAL OF OR INTEREST ON SUCH PREFERRED SECURITIES, OR ANY INTEREST THEREIN,
AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH PREFERRED 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,
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 PREFERRED SECURITY OR ANY INTEREST THEREIN.
ANY PURCHASER OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL
BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT
AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN
TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE "FDIC").
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Certificate
Number: P-__
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$25,000,000
Aggregate Liquidation Amount
Preferred
Securities
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CUSIP
NO.
_______________
Certificate
Evidencing Preferred Securities
of
Hersha
Statutory Trust I
Preferred
Securities
(liquidation
amount $1,000 per Preferred Security)
Hersha
Statutory Trust I, a statutory trust created under the laws of the State of
Delaware (the
"Trust"
), hereby
certifies that Sigler & Co. (the
"Holder"
) is the
registered owner of 25,000 Preferred Securities
[
if
the Preferred Security is a Global Security, then insert
-
or such
other number of Preferred Securities represented hereby as may be set forth in
the records of the Securities Registrar hereinafter referred to in accordance
with the Trust Agreement (as defined below)] of the Trust representing an
undivided preferred beneficial interest in the assets of the Trust and
designated the Hersha Statutory Trust I Preferred Securities (liquidation amount
$1,000 per Preferred Security) (the
"Preferred
Securities"
).
Subject to the terms of the Trust Agreement (as defined below), the Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in
Section 5.7
of the
Trust Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust, dated
as of May 13, 2005 as the same may be amended from time to time (the
"Trust
Agreement"
), among
Hersha Hospitality Limited Partnership, as Depositor, JPMorgan Chase Bank,
National Association, as Property Trustee, Chase Bank USA, National Association,
as Delaware Trustee, the Administrative Trustees named therein and the Holders,
from time to time, of Trust Securities. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the
Property Trustee at its Corporate Trust Office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and is
entitled to the benefits thereunder.
This
Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All
capitalized terms used but not defined in this Preferred Securities Certificate
are used with the meanings specified in the Trust Agreement, including the
Schedules and Exhibits thereto.
In
Witness Whereof
, one of
the Administrative Trustees of the Trust has executed on behalf of the Trust
this certificate this __ day of __________, 2005.
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Hersha
Statutory Trust I
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By:
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Name:
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Administrative
Trustee
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This is
one of the Preferred Securities referred to in the within-mentioned Trust
Agreement.
Dated:
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JPMorgan
Chase Bank, National Association
,
not in its individual capacity, but solely as Property
Trustee
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By:
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Authorized
signatory
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[FORM
OF REVERSE OF SECURITY]
The Trust
promises to pay Distributions from May 13, 2005, or from the most recent
Distribution Date to which Distributions have been paid or duly provided for,
quarterly
in
arrears on March 30
,
June 30,
September 30 and December 30 of each year, commencing on June 30, 2005, at a
fixed rate equal to 7.34% per annum through the interest payment date on
June 30, 2010 ("Fixed Rate Period") and thereafter at a variable rate equal
to LIBOR plus 3.00% per annum of the Liquidation Amount of the Preferred
Securities represented by this Preferred Securities Certificate, together with
any Additional Interest Amounts, in respect to such period.
Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.
Distributions
on the Securities must be paid on the dates payable to the extent that the Trust
has funds available for the payment of such Distributions in the Payment Account
of the Trust. The Trust's funds available for Distribution to the Holders of the
Preferred Securities will be limited to payments received from the
Depositor.
During an
Event of Default, the Depositor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Depositor's capital stock or (ii) make any payment
of principal of or any interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Depositor that rank
pari
passu
in all
respects with or junior in interest to the Notes (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Depositor in
connection with (1) any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, (2) a dividend reinvestment or stockholder stock
purchase plan or (3) the issuance of capital stock of the Depositor (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to such Event of
Default, (b) as a result of an exchange or conversion of any class or series of
the Depositor's capital stock (or any capital stock of a Subsidiary (as defined
in the Indenture) of the Depositor) for any class or series of the Depositor's
capital stock or of any class or series of the Depositor's indebtedness for any
class or series of the Depositor's capital stock, (c) the purchase of fractional
interests in shares of the Depositor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, or (d) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks
pari
passu
with or
junior to such stock).
On each
Note Redemption Date, on the stated maturity (or any date of principal repayment
upon early maturity) of the Notes and on each other date on (or in respect of)
which any principal on the Notes is repaid, the Trust will be required to redeem
a Like Amount of Trust Securities at the Redemption Price.
Under the
Indenture, the Notes may be redeemed by the Depositor on any Interest Payment
Date, at the Depositor's option, on or after June 30, 2010 in whole or in part
from time to time at the Optional Note Redemption Price of the principal amount
thereof or the redeemed portion thereof, as applicable, together, in the case of
any such redemption, with accrued interest, including any Additional Interest,
to but excluding the date fixed for redemption. The Notes may also be redeemed
by the Depositor, at its option, at any time, in whole but not in part, upon the
occurrence of an Investment Company Event or a Tax Event at the Special Note
Redemption Price;
provided
, that
the Depositor shall have received the prior approval of any Applicable Insurance
Regulatory Authority then required; and
provided,
further
,
that
such Investment Company Event or a Tax Event is continuing on the Redemption
Date.
The Trust
Securities redeemed on each Redemption Date shall be redeemed at the Redemption
Price with the proceeds from the contemporaneous redemption or payment at
maturity of Notes. Redemptions of the Trust Securities (or portion thereof)
shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made
by wire
transfer at such place and to such account at a banking institution in the
United States as may be designated in writing 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.
If any
Preferred Securities are held by a Depositary, such Distributions shall be made
to the Depositary in immediately available funds.
The
indebtedness evidenced by the Notes 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 (as defined in the Indenture), and this Security is issued subject
to the provisions of the Indenture with respect thereto.
ASSIGNMENT
For Value
Received,
the
undersigned assigns and transfers this Preferred Securities Certificate
to:
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(Insert
assignee's social security or tax identification
number)
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(Insert
address and zip code of assignee)
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and
irrevocably appoints
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agent to
transfer this Preferred Securities Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
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Signature:
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(Sign
exactly as your name appears on the other side of this Preferred
Securities Certificate)
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The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program), pursuant to S.E.C. Rule
17Ad-15.
Exhibit
D
Reserved
Exhibit
E
Form
of Transferor Certificate
__________,
[ ]
JPMorgan
Chase Bank, National Association
600
Travis, 50
th
Floor
Houston,
Texas 77002
Attention:
Institutional Trust Services
Hersha
Hospitality Limited Partnership
Hersha
Statutory Trust I
510
Walnut Street, 9th Floor
Philadelphia,
PA 19106
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Re:
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Purchase
of $____________ stated liquidation amount of Preferred
Securities
(the "Preferred Securities") of Hersha Statutory Trust
I
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Ladies
and Gentlemen:
In
connection with our purchase of the Preferred Securities we confirm
that:
1.
We
understand that the Preferred Securities (the "Preferred Securities") of Hersha
Statutory Trust I (the "Trust") of
Hersha
Hospitality Limited Partnership
(the
"Company") and the Junior Subordinated Notes due 2035 of the Company (the
"Subordinated Notes") (the entire amount of the Trust's outstanding Preferred
Securities and the Subordinated Notes together being referred to herein as the
"Offered Securities") have not been registered under the Securities Act of 1933,
as amended (the "Securities Act"), and may not be offered or sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing the Offered Securities that, if
we decide to offer, sell or otherwise transfer any such Offered Securities, (i)
such offer, sale or transfer will be made only (a) to the Trust or (b) to a
person we reasonably believe is a "Qualified Purchaser" (a "QP") (as defined in
Section 2(a)(51) of the Investment Company Act of 1940, as amended) and
(ii) the Offered Securities or any interest therein may not be offered,
sold or otherwise transferred in the absence of registration under the
Securities Act or pursuant to an applicable exception therefrom. We understand
that the certificates for any Offered Security that we receive will bear a
legend substantially to the effect of the foregoing.
2.
We are a
"Qualified Purchaser" within the meaning of Section 2(a)(51) of the Investment
Company Act of 1940, as amended, and are purchasing for our own account or for
the account of such a "Qualified Purchaser," and we have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Offered Securities, and we and any
account for which we are acting are each able to bear the economic risks of our
or its investment.
3.
We are
acquiring the Offered Securities purchased by us for our own account (or for one
or more accounts as to each of which we exercise sole investment discretion and
have authority to make, and do make, the statements contained in this letter)
and not with a view to any distribution of the Offered Securities, subject,
nevertheless, to the understanding that the disposition of our property will at
all times be and remain within our control.
4.
In the
event that we purchase any Preferred Securities or any Subordinated Notes, we
will acquire such Preferred Securities having an aggregate stated liquidation
amount of not less than $100,000 or such Subordinated Notes having an aggregate
principal amount not less than $100,000, for our own account and for each
separate account for which we are acting.
5.
We
acknowledge that we are not a fiduciary of (i) an employee benefit, 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 (ii) an entity whose underlying assets include "plan assets" by
reason of any Plan's investment in the entity, and are not purchasing any of the
Offered Securities on behalf of or with "plan assets" by reason of any Plan's
investment in the entity.
6.
We
acknowledge that the Trust and the Company and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, warranties and
agreements and agree that if any of the acknowledgments, representations,
warranties and agreements deemed to have been made by our purchase of any of the
Offered Securities are no longer accurate, we shall promptly notify the Company.
If we are acquiring any Offered Securities as a fiduciary or agent for one or
more investor accounts, we represent that we have sole discretion with respect
to each such investor account and that we have full power to make the foregoing
acknowledgments, representations and agreement on behalf of each such investor
account.
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(Name
of Purchaser)
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By:
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Date:
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Upon
transfer, the Preferred Securities (having a stated liquidation amount of
$_____________) would be registered in the name of the new beneficial owner as
follows.
Name:
Exhibit
F
Officer's
Financial Certificate
The
undersigned, the [Chairman/Chief Executive Officer/President/Vice
President/Chief Financial Officer/Treasurer/Assistant
Treasurer/Secretary/Assistant Secretary] of Hersha Hospitality Trust, the
general partner of Hersha Hospitality Limited Partnership (the "Company") hereby
certifies pursuant to Section 8.16(b) of the Amended and Restated Trust
Agreement, dated as of May 13, 2005 (the "Trust Agreement"), among the Company,
JPMorgan Chase Bank, National Association, as property trustee, Chase Bank USA,
National Association, as Delaware trustee, and the Administrative Trustees named
therein and the Holders, from time to time, of Trust Securities, that, as of
[date], [20__]:
[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 HHT and its consolidated subsidiaries for the three
years ended _______, 20___].]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of HHT 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 HHT and its consolidated subsidiaries, and the results of operations and
changes in financial condition as of the date, and for the
[quarter]
[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).
IN
WITNESS WHEREOF, the undersigned has executed this Officer's Financial
Certificate as of this _____ day of _____________, 20__.
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Hersha
Hospitality Limited Partnership
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By:
Hersha Hospitality Trust, its General Partner
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By:
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Name:
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Hersha
Hospitality Limited Partnership
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510
Walnut Street, 9th Floor
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Philadelphia,
PA 19106
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215-238-1046
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Schedule
A
DETERMINATION
OF LIBOR
With
respect to the Trust 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
(except with respect to the first interest payment period, such date shall be
two business days prior to the Closing Date)
(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. 1991 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.
EXHIBIT
10.1
PURCHASE
AGREEMENT
among
Hersha
Hospitality Limited Partnership
Hersha
Statutory Trust I
and
Merrill
Lynch International
________________
Dated as
of
May 11, 2005
________________
PURCHASE
AGREEMENT
($25,000,000
Trust Preferred Securities)
THIS
PURCHASE AGREEMENT, dated as of May 11, 2005 (this "
Purchase
Agreement
"), is
entered into among Hersha Hospitality Limited Partnership, a Virginia limited
partnership
(the
"
Company
"),
Hersha Statutory Trust I, a
Delaware
statutory
trust
(the "
Trust
", and
together with the Company, the "
Sellers
"), and
Merrill Lynch International or its assignee (the "
Purchaser
").
WITNESSETH:
WHEREAS,
the Sellers propose to issue and sell 25,000 Preferred Securities of the Trust,
having a stated liquidation amount of $1,000 per security (the "
Preferred
Securities
");
WHEREAS,
the entire proceeds from the sale of the Preferred Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the "
Common
Securities
"), and
will be used by the Trust to purchase Twenty-Five Million Seven Hundred
Seventy-Four Thousand Dollars ($25,774,000) in principal amount of the unsecured
junior subordinated notes of the Company (the "
Junior
Subordinated Notes
");
WHEREAS,
the Preferred Securities and the Common Securities for the Trust will be issued
pursuant to the
Amended
and Restated
Trust
Agreement (the "
Trust
Agreement
"), dated
as of the Closing Date, among the Company, as depositor, JPMorgan Chase Bank,
National Association, a national banking association, as property trustee (in
such capacity, the "
Property
Trustee
"), Chase
Bank USA, National Association, a national banking association,
as
Delaware trustee (in such capacity, the "
Delaware
Trustee
")
, the
Administrative Trustees named therein (in such capacities, the "
Administrative
Trustees
") and
the holders from time to time of undivided beneficial interests in the assets of
the Trust; and
WHEREAS,
the Junior Subordinated Notes will be issued pursuant to a Junior Subordinated
Indenture, dated as of the Closing Date (the "
Indenture
"),
between the Company and JPMorgan Chase Bank, National Association, a national
banking association, as indenture trustee (in such capacity, the "
Indenture
Trustee
").
NOW,
THEREFORE, in consideration of the mutual agreements and subject to the terms
and conditions herein set forth, the parties hereto agree as
follows:
1.
Definitions
.
The
Preferred Securities, the Common Securities and the Junior Subordinated Notes
are collectively referred to herein as the "
Securities
." This
Purchase Agreement, the Indenture, the Trust Agreement and the Securities are
collectively referred to herein as the "
Operative
Documents
." All
other capitalized terms used but not defined in this Purchase Agreement shall
have the respective meanings ascribed thereto in the Indenture.
2.
Purchase
and Sale of the Preferred Securities
.
(a)
The
Sellers agree to sell to the Purchaser, and the Purchaser agrees to purchase
from the Sellers the Preferred Securities for an amount (the "
Purchase
Price
") equal
to Twenty-Five Million Dollars ($25,000,000). The Purchaser shall be responsible
for the rating agency costs and expenses. The Sellers shall use the Purchase
Price, together with the proceeds from the sale of the Common Securities, to
purchase the Junior Subordinated Notes.
(b)
Delivery
or transfer of, and payment for, the Preferred Securities shall be made at 11:00
A.M. Eastern Daylight time (11:00 A.M. New York time), on May 13, 2005, (such
date and time of delivery and payment for the Preferred Securities being herein
called the "
Closing
Date
"). The
Preferred Securities shall be transferred and delivered to the Purchaser against
the payment of the Purchase Price to the Sellers made by wire transfer in
immediately available funds on the Closing Date to a U.S. account designated in
writing by the Company at least two business days prior to the Closing
Date.
(c)
Delivery
of the Preferred Securities shall be made at such location, and in such names
and denominations, as the Purchaser shall designate at least two business days
in advance of the Closing Date. The Company and the Trust agree to have the
Preferred Securities available for inspection and checking by the Purchaser not
later than 2:00 P.M., Eastern Daylight time, on the business day prior to the
Closing Date. The closing for the purchase and sale of the Preferred Securities
shall occur at the offices of Bracewell & Giuliani LLP, 111 Congress Avenue,
Suite 2300, Austin, Texas 78701, or such other place as the parties hereto shall
agree.
3.
Condition
s
.
The
obligations of the parties under this Purchase Agreement are subject to the
following conditions:
(a)
The
representations and warranties contained herein shall be accurate as of the date
of delivery of the Preferred Securities.
(b)
The
Purchaser shall have sold securities issued by it in such an amount that the net
proceeds therefrom shall be available on the Closing Date and shall be
sufficient to purchase the Preferred Securities and all other preferred
securities contemplated in agreements similar to this Agreement.
(c)
Hunton
& Williams LLP, counsel for the Company and the Trust (the "
Company
Counsel
"), shall
have delivered an opinion, dated the Closing Date, addressed to the Purchaser,
Cohen Bros. Securities, LLC and JPMorgan Chase Bank, National Association, in
substantially the form set out in
Annex
A-I
hereto
and (ii) the Company shall have furnished to the Purchaser the opinion of the
Company's General Counsel or a certificate signed by the Chief Executive
Officer, President, an Executive Vice President, Chief Financial Officer,
Treasurer or Assistant Treasurer of Hersha Hospitality Trust, a Maryland real
estate investment trust and the general partner and the Company ("HHT"), dated
the Closing Date, addressed to the Purchaser, in substantially the form set out
in
Annex
A-II
hereto.
In rendering their opinion, the Company Counsel may rely as to factual matters
upon certificates or other documents furnished by officers, directors and
trustees of the Company and the Trust and by government officials (provided,
however, that copies of any such certificates or documents are delivered to the
Purchaser) and by and upon such other documents as such counsel may, in their
reasonable opinion, deem appropriate as a basis for the Company Counsel's
opinion. The Company Counsel may specify the jurisdictions in which they are
admitted to practice and that they are not admitted to practice in any other
jurisdiction and are not experts in the law of any other jurisdiction. If the
Company Counsel is not admitted to practice in the State of New York, the
opinion of the Company Counsel may assume, for purposes of the opinion, that the
laws of the State of New York are substantively identical, in all respects
material to the opinion, to the internal laws of the state in which such counsel
is admitted to practice. Such Company Counsel Opinion shall not state that they
are to be governed or qualified by, or that they are otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
(d)
The
Purchaser shall have been furnished the opinion of Bracewell & Giuliani LLP,
special tax counsel for the Purchaser, dated the Closing Date, addressed to the
Purchaser and JPMorgan Chase Bank, National Association, and HHT, in
substantially the form set out in
Annex
B
hereto.
(e)
The
Purchaser shall have received the opinion of
Richards,
Layton & Finger, P.A.
, special
Delaware
c
ounsel
for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser,
JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company,
in substantially the form set out in
Annex
C
hereto.
(f)
The
Purchaser shall have received the opinion of Gardere Wynne Sewell LLP, special
counsel for the Property Trustee and the Indenture Trustee, dated the Closing
Date, addressed to the Purchaser, in substantially the form set out in
Annex
D
hereto.
(g)
The
Purchaser shall have received the opinion of Richards, Layton & Finger,
P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date,
addressed to the Purchaser
and
JPMorgan Chase Bank, National Association,
in
substantially the form set out in
Annex
E
hereto.
(h)
The
Company shall have furnished to the Purchaser a certificate, signed by the Chief
Executive Officer, President or an Executive Vice President, and Chief Financial
Officer, Treasurer or Assistant Treasurer of HHT, and the Trust shall have
furnished to the Purchaser a certificate of the Trust, signed by an
Administrative Trustee of the Trust, in each case dated the Closing Date, and,
in the case of the Company, as to (i) and (ii) below and, in the case of the
Trust, as to (i) below.
(i)
the
representations and warranties in this Purchase Agreement are true and correct
on and as of the Closing Date with the same effect as if made on the Closing
Date, and the Company and the Trust have complied with all the agreements and
satisfied all the conditions on either of their part to be performed or
satisfied at or prior to the Closing Date; and
(ii)
since
December 31, 2004 (the date of the latest Financial Statements), there has been
no material adverse change in the business properties, management, financial
condition or results of operations of the Company and its subsidiaries, whether
or not arising from transactions occurring in the ordinary course of business (a
"
Material
Adverse Change
").
(i)
Subsequent
to the execution of this Purchase Agreement, there shall not have been any
change, or any development involving a prospective change, in or affecting the
condition (financial or other), earnings, business or assets of the Company and
its subsidiaries, whether or not occurring in the ordinary course of business,
the effect of which is, in the Purchaser's judgment, so material and adverse as
to make it impractical or inadvisable to proceed with the purchase of the
Preferred Securities.
(j)
Prior to
the Closing Date, the Company and the Trust shall have furnished to the
Purchaser and its counsel such further information, certificates and documents
as the Purchaser or its counsel may reasonably request.
If any of
the conditions specified in this
Section 3
shall
not have been fulfilled when and as provided in this Purchase Agreement, or if
any of the opinions, certificates and documents mentioned above or elsewhere in
this Purchase Agreement shall not be reasonably satisfactory in form and
substance to the Purchaser or its counsel, this Purchase Agreement and all the
Purchaser's obligations hereunder may be canceled at, or at any time prior to,
the Closing Date by the Purchaser. Notice of such cancellation shall be given to
the Company and the Trust in writing or by telephone or facsimile confirmed in
writing.
Each
certificate signed by any trustee of the Trust or any officer of the Company and
delivered to the Purchaser or the Purchaser's counsel in connection with the
Operative Documents and the transactions contemplated hereby and thereby shall
be deemed to be a representation and warranty of the Trust and/or the Company,
as the case may be, and not by such trustee or officer in any individual
capacity.
4.
Representations
and Warranties of the Company and the Trust
.
The
Company and the Trust jointly and severally represent and warrant to, and agree
with the Purchaser, as follows:
(a)
Neither
the Company nor the Trust, nor any of their "Affiliates" (as defined in Rule
501(b) of Regulation D ("
Regulation
D
") under
the Securities Act (as defined below)), nor any person acting on its or their
behalf, has, directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would require the
registration of any of the Securities under the Securities Act of 1933, as
amended (the "
Securities
Act
").
(b)
Neither
the Company nor the Trust, nor any of their Affiliates, nor any person acting on
its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any offer or
sale of any of the Securities.
(c)
The
Securities (i) are not and have not been listed on a national securities
exchange registered under section 6 of the Securities Exchange Act of 1934, as
amended (the "
Exchange
Act
"), or
quoted on a U.S. automated inter-dealer quotation system and (ii) are not of an
open-end investment company, unit investment trust or face-amount certificate
company that are, or are required to be, registered under section 8 of the
Investment Company Act of 1940, as amended (the "
Investment
Company Act
"), and
the Securities otherwise satisfy the eligibility requirements of Rule 144A(d)(3)
promulgated pursuant to the Securities Act ("
Rule
144A(d)(3)
").
(d)
Neither
the Company nor the Trust, nor any of their Affiliates, nor any person acting on
its or their behalf, has engaged, or will engage, in any "directed selling
efforts" within the meaning of Regulation S under the Securities Act with
respect to the Securities.
(e)
Neither
the Company nor the Trust is, and, immediately following consummation of the
transactions contemplated hereby and the application of the net proceeds
therefrom, will not be, an "investment company" or an entity "controlled" by an
"investment company," in each case within the meaning of section 3(a) of the
Investment Company Act.
(f)
Neither
the Company nor the Trust has paid or agreed to pay to any person any
compensation for soliciting another to purchase any of the Securities, except
for the sales commission in the amount of $750,000, the Company has agreed to
pay to Cohen Bros. Securities, LLC pursuant to the letter agreement between HHT
and Cohen Bros. Securities, LLC.
(g)
The Trust
has been duly created and is validly existing
in good
standing as a
statutory
trust
under the Delaware
Statutory
Trust
Act, 12 Del. C. §3801,
et
seq
. (the
"
Statutory
Trust
Act
")
with all
requisite power and authority to own property and to conduct the business it
transacts and proposes to transact and to enter into and perform its obligations
under the Operative Documents to which it is a party. The Trust is duly
qualified to transact business as a foreign entity and is in good standing in
each jurisdiction in which such qualification is necessary, except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the condition (financial or otherwise), earnings, business or assets
of the Trust, whether or not occurring in the ordinary course of business. The
Trust is not a party to or otherwise bound by any agreement other than the
Operative Documents. The Trust is and will be, under current law, classified for
U.S. federal income tax purposes as a grantor trust and not as an association or
publicly traded partnership taxable as a corporation.
(h)
The Trust
Agreement has been duly authorized by the Company and, on the Closing Date
specified in
Section
2(b)
, will
have been duly executed and delivered by the Company and the Administrative
Trustees of the Trust, and, assuming due authorization, execution and delivery
by the Property Trustee and the Delaware Trustee, will be a legal, valid and
binding obligation of the Company and the Administrative Trustees, enforceable
against them in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and similar laws affecting creditors' rights
generally and to general principles of equity (regardless of whether the issue
of enforceability is considered in a proceeding at law or in equity). Each of
the Administrative Trustees of the Trust is an employee of the Company and has
been duly authorized by the Company to execute and deliver the Trust
Agreement.
(i)
The
Indenture has been duly authorized by the Company and, on the Closing Date, will
have been duly executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Indenture Trustee, will be a legal,
valid and binding obligation of the Company enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization and
similar laws affecting creditors' rights generally and to general principles of
equity (regardless of whether the issue of enforceability is considered in a
proceeding at law or in equity).
(j)
The
Preferred Securities and the Common Securities have been duly authorized by the
Trust and, when issued and delivered against payment therefor on the Closing
Date in accordance with this Purchase Agreement, in the case of the Preferred
Securities, and in accordance with the Common Securities Subscription Agreement,
in the case of the Common Securities, will be validly issued, fully paid and
non-assessable and will represent undivided beneficial interests in the assets
of the Trust entitled to the benefits of the Trust Agreement, enforceable
against the Trust in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws affecting creditors'
rights generally and to general principles of equity (regardless of whether the
issue of enforceability is considered in a proceeding at law or in equity). The
issuance of the Securities is not subject to any preemptive or other similar
rights. On the Closing Date, all of the issued and outstanding Common Securities
will be directly owned by the Company free and clear of any pledge, security
interest, claim, lien or other encumbrance of any kind (each, a "
Lien
").
(k)
The
Junior Subordinated Notes have been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered to the Indenture
Trustee for authentication in accordance with the Indenture and, when
authenticated in the manner provided for in the Indenture and delivered to the
Trust against payment therefor in accordance with the Junior Subordinated Note
Purchase Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and similar laws affecting creditors' rights
generally and to general principles of equity (regardless of whether the issue
of enforceability is considered in a proceeding at law or in
equity).
(l)
This
Purchase Agreement has been duly authorized, executed and delivered by the
Company and the Trust.
(m)
Neither
the issue and sale of the Common Securities, the Preferred Securities or the
Junior Subordinated Notes, nor the purchase of the Junior Subordinated Notes by
the Trust, nor the execution and delivery of and compliance with the Operative
Documents by the Company or the Trust, nor the consummation of the transactions
contemplated herein or therein, (i) will conflict with or constitute a violation
or breach of the Trust Agreement or the organizational documents of the Company
or any subsidiary of the Company or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, governmental
authority, agency or instrumentality or court, domestic or foreign, having
jurisdiction over the Trust or the Company or any of its subsidiaries or their
respective properties or assets (collectively, the "
Governmental
Entities
"), (ii)
will conflict with or constitute a violation or breach of, or a default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any Lien upon any property or assets of the Trust, the Company or
any of the Company's subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
(A) the Trust, the Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or (B) to which any of the property or assets of
any of them is subject, or any judgment, order or decree of any court,
Governmental Entity or arbitrator, except, in the case of this clause (ii), for
such conflicts, breaches, violations, defaults, Repayment Events (as defined
below) or Liens which (X) would not, singly or in the aggregate, materially and
adversely affect the consummation of the transactions contemplated by the
Operative Documents and (Y) would not, singly or in the aggregate, have a
material adverse effect on the business, properties, financial condition, or
results of operations or prospects of the Company and its subsidiaries taken as
a whole, whether or not occurring in the ordinary course of business (a
"
Material
Adverse Effect
") or
(iii) require the consent, approval, authorization or order of any court or
Governmental Entity. As used herein, a "
Repayment
Event
" means
any event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Trust or the Company or any of its subsidiaries prior
to its scheduled maturity.
(n)
The
Company has been duly organized and is validly existing as a limited partnership
in good standing under the laws of Maryland, with all requisite power and
authority to own, lease and operate its properties and conduct its business as
now being conducted and as proposed to be conducted, and is duly qualified to
transact business and is in good standing in each jurisdiction where the nature
of its activities requires such qualification, except where the failure of the
Company to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect.
(o)
The
Company has no subsidiaries that are material to its business, financial
condition or earnings other than those subsidiaries listed in
Schedule
1
attached
hereto (collectively, the "
Significant
Subsidiaries
"). Each
Significant Subsidiary has been duly organized and is validly existing as a
corporation, limited liability company, limited partnership or trust in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with all requisite corporate power and authority to own, lease and
operate its properties and conduct its respective business as now being
conducted and as proposed to be conducted. Each Significant Subsidiary is duly
qualified to transact business and is in good standing in each jurisdiction
where the nature of its activities requires such qualification, except where the
failure to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect.
(p)
Each of
the Trust, the Company and each of the Company's subsidiaries hold all necessary
approvals, authorizations, orders, licenses, consents, registrations,
qualifications, certificates and permits (collectively, the "
Governmental
Licenses
") of and
from Governmental Entities necessary to conduct their respective businesses as
now being conducted, and neither the Trust, the Company nor any of the Company's
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Government License, except where the failure to be
so licensed or approved or the receipt of an unfavorable decision, ruling or
finding, would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except
where the invalidity or the failure of such Governmental Licenses to be in full
force and effect, would not, singly or in the aggregate, have a Material Adverse
Effect; and the Company and its subsidiaries are in compliance with all laws,
rules, regulations, judgments, orders, decrees and consents applicable to their
respective businesses, except where the failure to be in compliance would not,
singly or in the aggregate, have a Material Adverse Effect.
(q)
All of
the issued and outstanding units in the Company and all of the issued and
outstanding shares of capital stock of or other ownership interests in each of
its subsidiaries are validly issued, fully paid and non-assessable; the Company
owns the interests in each of its subsidiaries as provided on Schedule 2; the
ownership interest in each of its subsidiaries is owned by the Company, free and
clear of any Lien, claim or equitable right; and none of the issued and
outstanding units in the Company and none of the issued and outstanding capital
stock of any subsidiary was issued in violation of any preemptive or similar
rights arising by operation of law of their respective jurisdiction of
organization, under the organizational documents of such entity or under any
agreement to which the Company or any of its subsidiaries is a
party.
(r)
Neither
the Company nor any of its subsidiaries is (i) in violation of its respective
organizational documents or (ii) in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any such subsidiary is a party or by which it
or any of them may be bound or to which any of the property or assets of any of
them is subject, except, in the case of clause (ii), where such violation or
default would not, singly or in the aggregate, have a Material Adverse
Effect.
(s)
There is
no action, suit or proceeding before or by any Governmental Entity, arbitrator
or court, domestic or foreign, now pending or, to the knowledge of the Company
or the Trust after due inquiry, threatened against or affecting the Trust or the
Company or any of the Company's subsidiaries, except for such actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, adversely affect the consummation of the transactions contemplated by
the Operative Documents or have a Material Adverse Effect; and the aggregate of
all pending legal or governmental proceedings to which the Trust or the Company
or any of its subsidiaries is a party or of which any of their respective
properties or assets is subject, including ordinary routine litigation
incidental to the business, are not reasonably expected to result in a Material
Adverse Effect.
(t)
The
accountants of HHT who certified the Financial Statements (as defined below) are
independent public accountants of HHT and its subsidiaries, including the
Company, within the meaning of the Securities Act, and the rules and regulations
of the Securities and Exchange Commission (the "
Commission
")
thereunder.
(u)
The
audited consolidated financial statements (including the notes thereto) and
schedules of HHT and its consolidated subsidiaries for the fiscal year ended
December 31, 2004 (the "
Financial
Statements
") and
the interim unaudited consolidated financial statements of HHT and its
consolidated subsidiaries for the quarter ended March 31, 2005 ("
Interim
Financial Statements
") provided to the Purchaser are the most recent
available audited and unaudited consolidated financial statements of the Company
and its consolidated subsidiaries, respectively, and fairly present in all
material respects, in accordance with U.S. generally accepted accounting
principles ("GAAP"), the financial position of the Company and its consolidated
subsidiaries, and the results of operations and changes in financial condition
as of the dates and for the periods therein specified, subject, in the case of
Interim Financial Statements, to year-end adjustments (which are expected to
consist solely of normal recurring adjustments). Such consolidated financial
statements and schedules have been prepared in accordance with GAAP consistently
applied throughout the periods involved (except as otherwise noted
therein).
(v)
None of
the Trust, the Company nor any of its subsidiaries has any material liability,
whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due, including any liability for taxes (and there
is no past or present fact, situation, circumstance, condition or other basis
for any present or future action, suit, proceeding, hearing, charge, complaint,
claim or demand against the Company or its subsidiaries that could give rise to
any such liability), except for (i) liabilities set forth in the Financial
Statements or the Interim Financial Statements and (ii) normal fluctuations
in the amount of the liabilities referred to in clause (i) above occurring
in the ordinary course of business of the Trust, the Company and all of its
subsidiaries since the date of the most recent balance sheet included in such
Financial Statements.
(w)
Since the
respective dates of the Financial Statements and the Interim Financial
Statements, there has not been (A) any Material Adverse Change or (B) any
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock other than regular quarterly dividends on the
Company's common stock.
(x)
The
documents of HHT filed with the Commission in accordance with the Exchange Act,
from and including the commencement of the fiscal year covered by HHT's most
recent Annual Report on Form 10-K, at the time they were or hereafter are filed
by HHT with the Commission (collectively, the "
1934
Act Reports
"),
complied and will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder (the
"
1934
Act Regulations
"), and,
at the date of this Purchase Agreement and on the Closing Date, do not and will
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and other than such instruments, agreements, contracts and other documents as
are filed as exhibits to HHT's Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q or Current Reports on Form 8-K, there are no instruments, agreements,
contracts or documents of a character described in Item 601 of
Regulation S-K promulgated by the Commission to which HHT or any of its
subsidiaries is a party. HHT is in compliance with all currently applicable
requirements of the Exchange Act that were added by the Sarbanes-Oxley Act of
2002.
(y)
No labor
dispute with the employees of the Trust, the Company or any of its subsidiaries
exists or, to the knowledge of the executive officers of the Trust or the
Company, is imminent, except those which would not, singly or in the aggregate,
have a Material Adverse Effect.
(z)
No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any Governmental Entity, other than those that have
been made or obtained and any required under the securities or blue sky laws of
the jurisdiction in which the Securities are being offered, is required for the
performance by the Trust or the Company of their respective obligations under
the Operative Documents, as applicable, or the consummation by the Trust and the
Company of the transactions contemplated by the Operative
Documents.
(aa)
Each of
the Trust, the Company and each subsidiary of the Company has good and
marketable title to all of its respective real and personal properties, in each
case free and clear of all Liens and defects, except for those (i) related
to debt financings as provided on
Schedule
3
or
(ii) that would not, singly or in the aggregate, have a Material Adverse
Effect; and all of the leases and subleases under which the Trust, the Company
or any subsidiary of the Company holds properties are in full force and effect,
except where the failure of such leases and subleases to be in full force and
effect would not, singly or in the aggregate, have a Material Adverse Effect,
and none of the Trust, the Company or any subsidiary of the Company has any
notice of any claim of any sort that has been asserted by anyone adverse to the
rights of the Trust, the Company or any subsidiary of the Company under any such
leases or subleases, or affecting or questioning the rights of such entity to
the continued possession of the leased or subleased premises under any such
lease or sublease, except for such claims that would not, singly or in the
aggregate, have a Material Adverse Effect.
(bb)
Commencing
with its taxable year ended December 31, 1999, HHT has been, and upon the
completion of the transactions contemplated hereby, HHT will continue to be,
organized and operated in conformity with the requirements for qualification and
taxation as a real estate investment trust (a "
REIT
") under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"
Code
"), and
HHT's proposed method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code, and no
actions have been taken (or not taken which are required to be taken) which
would cause such qualification to be lost. HHT expects to continue to be
organized and to operate in a manner so as to qualify as a REIT in the taxable
year ending December 31, 2005 and succeeding taxable years.
(cc)
The
Company and each of the Significant Subsidiaries have timely and duly filed all
Tax Returns required to be filed by them or have obtained a valid extension for
such filings, and all such Tax Returns are true, correct and complete in all
material respects. The Company and each of the Significant Subsidiaries have
timely and duly paid in full all material Taxes required to be paid by them
(whether or not such amounts are shown as due on any Tax Return). There are no
federal, state, or other Tax audits or deficiency assessments proposed or
pending with respect to the Company or any of the Significant Subsidiaries, and,
to the Company's knowledge, no such audits or assessments are threatened. As
used herein, the terms "
Tax
" or
"
Taxes
" mean
(i) all federal, state, local, and foreign taxes, and other assessments of a
similar nature (whether imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable thereto, imposed by any
Governmental Entity, and (ii) all liabilities in respect of such amounts arising
as a result of being a member of any affiliated, consolidated, combined, unitary
or similar group, as a successor to another person or by contract. As used
herein, the term "
Tax
Returns
" means
all federal, state, local, and foreign Tax returns, declarations, statements,
reports, schedules, forms, and information returns and any amendments thereto
filed or required to be filed with any Governmental Entity.
(dd)
The Trust
will not be subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Notes, interest payable by the
Company on the Junior Subordinated Notes will be deductible by the Company, in
whole or in part, for United States federal income tax purposes, and the Trust
is not, or will not be within ninety (90) days of the date hereof, subject to
more than a
de
minimis
amount
of other taxes, duties or other governmental charges. There are no rulemaking or
similar proceedings before the United States Internal Revenue Service or
comparable federal, state, local or foreign government bodies which involve or
affect the Company or any subsidiary, which, if the subject of an action
unfavorable to the Company or any subsidiary, could result in a Material Adverse
Effect.
(ee)
The
books, records and accounts of HHT and its subsidiaries accurately and fairly
reflect, in reasonable detail, the transactions in, and dispositions of, the
assets of, and the results of operations of, HHT and its subsidiaries. Except as
disclosed in its SEC filings, HHT and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in accordance with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(ff)
The
Company and the Significant Subsidiaries maintain insurance covering its
properties, operations, personnel and businesses as they deem adequate; such
insurance insures against such losses and risks to an extent and in such amounts
in all material respects as are customary with industry practice to protect the
Company and its Significant Subsidiaries and their businesses. All policies of
insurance and fidelity or surety bonds insuring the Company or any of the
Significant Subsidiaries or the Company's or Significant Subsidiaries'
respective properties, operations, personnel and businesses are in full force
and effect. The Company and each of the subsidiaries are in compliance with the
terms of such policies and instruments in all material respects. Neither the
Company nor any Significant Subsidiary has reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.
Within the past twelve months, neither the Company nor any Significant
Subsidiary has been denied any insurance coverage which it has sought or for
which it has applied.
(gg)
Neither
the Company nor its subsidiaries nor, to the Company's knowledge, any person
acting on behalf of the Company and its subsidiaries including, without
limitation, any director, officer, agent or employee of the Company or its
subsidiaries has, directly or indirectly, while acting on behalf of the Company
and its subsidiaries (i) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity;
(ii) made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment.
(hh)
The
information provided by the Company and the Trust pursuant to this Purchase
Agreement and the transactions contemplated hereby does not, as of the date
hereof, and will not as of the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii)
The
Company, it’s subsidiaries and their properties, assets and operations are in
compliance with, and hold all permits, authorizations and approvals required
under, Environmental Laws (as defined below), except to the extent that failure
to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; except as
would not, individually or in the aggregate, have a Material Adverse Effect,
there are no past, present or, to the Company's knowledge after due inquiry,
reasonably anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be expected to give
rise to any material costs or liabilities to the Company or its subsidiaries
under, or to interfere with or prevent compliance by the Company or it
subsidiaries with, Environmental Laws; except as would not, individually or in
the aggregate, have a Material Adverse Effect, neither the Company nor any of
its subsidiaries (i) is the subject of any investigation, (ii) has
received any notice or claim, (iii) is a party to or affected by any
pending or threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any agreement, in each
case relating to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of any
Hazardous Materials (as defined below) (as used herein, "Environmental Law"
means any federal, state, local or foreign law, statute, ordinance, rule,
regulation, order, decree, judgment, injunction, permit, license, authorization
or other binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and "Hazardous Materials" means any material
(including, without limitation, pollutants, contaminants, hazardous or toxic
substances or wastes) that is regulated by or may give rise to liability under
any Environmental Law).
(jj)
In the
ordinary course of its business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, and periodically identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the
basis of such reviews and the amount of its established reserves, the Company
has reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse
Effect.
5.
Representations
and Warranties of the Purchaser
.
The
Purchaser represents and warrants to, and agrees with, the Company and the Trust
as follows:
(a)
The
Purchaser is aware that the Securities have not been and will not be registered
under the Securities Act and may not be offered or sold within the United States
or to "U.S. persons" (as defined in Regulation S under the Securities Act)
except in accordance with Rule 903 of Regulation S under the Securities Act or
pursuant to an exemption from the registration requirements of the Securities
Act.
(b)
The
Purchaser is an "accredited investor," as such term is defined in Rule 501(a) of
Regulation D under the Securities Act.
(c)
Neither
the Purchaser, nor any of the Purchaser's affiliates, nor any person acting on
the Purchaser's or the Purchaser's Affiliate's behalf has engaged, or will
engage, in any form of "general solicitation or general advertising" (within the
meaning of Regulation D under the Securities Act) in connection with any offer
or sale of the Preferred Securities.
(d)
The
Purchaser understands and acknowledges that (i) no public market exists for any
of the Securities and that it is unlikely that a public market will ever exist
for the Securities, (ii) the Purchaser is purchasing the Preferred Securities
for its own account, for investment and not with a view to, or for offer or sale
in connection with, any distribution thereof in violation of the Securities Act
or other applicable securities laws, subject to any requirement of law that the
disposition of its property be at all times within its control and subject to
its ability to resell such Securities pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption therefrom or in a
transaction not subject thereto, and the Purchaser agrees to the legends and
transfer restrictions applicable to the Preferred Securities contained in the
Trust Agreement, and (iii) the Purchaser has had the opportunity to ask
questions of, and receive answers and request additional information from, the
Company and is aware that it may be required to bear the economic risk of an
investment in the Securities.
(e)
The
Purchaser is a company with limited liability duly incorporated, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized with all requisite (i) power and authority to execute, deliver and
perform the Operative Documents to which it is a party, to make the
representations and warranties specified herein and therein and to consummate
the transactions contemplated herein and (ii) right and power to purchase the
Preferred Securities.
(f)
This
Purchase Agreement has been duly authorized, executed and delivered by the
Purchaser and no filing with, or authorization, approval, consent, license,
order registration, qualification or decree of, any governmental body, agency or
court having jurisdiction over the Purchaser, other than those that have been
made or obtained, is necessary or required for the performance by the Purchaser
of its obligations under this Purchase Agreement or to consummate the
transactions contemplated herein.
(g)
The
Purchaser is a "Qualified Purchaser" as such term is defined in Section 2(a)(51)
of the Investment Company Act.
6.
Covenants
and Agreements of the Company and the Trust
.
The
Company and the Trust jointly and severally agree with the Purchaser as
follows:
(a)
During
the period from the date of this Agreement to the Closing Date, the Company and
the Trust shall use their reasonable best efforts and take all action necessary
or appropriate to cause their representations and warranties contained in
Section
4
hereof
to be true as of the Closing Date, after giving effect to the transactions
contemplated by this Purchase Agreement, as if made on and as of the Closing
Date.
(b)
The
Company and the Trust will arrange for the qualification of the Preferred
Securities for sale under the securities or blue sky laws of such jurisdictions
as the Purchaser may designate and will maintain such qualifications in effect
so long as required for the sale of the Preferred Securities. The Company or the
Trust, as the case may be, will promptly advise the Purchaser of the receipt by
the Company or the Trust, as the case may be, of any notification with respect
to the suspension of the qualification of the Preferred Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(c)
Neither
the Company nor the Trust will, nor will either of them permit any of its
Affiliates to, nor will either of them permit any person acting on its or their
behalf (other than the Purchaser) to, resell any Preferred Securities that have
been acquired by any of them.
(d)
Neither
the Company nor the Trust will, nor will either of them permit any of their
Affiliates or any person acting on their behalf to, engage in any "directed
selling efforts" within the meaning of Regulation S under the Securities Act
with respect to the Securities.
(e)
Neither
the Company nor the Trust will, nor will either of them permit any of their
Affiliates or any person acting on their behalf to, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of any of the Securities under
the Securities Act.
(f)
Neither
the Company nor the Trust will, nor will either of them permit any of its
Affiliates or any person acting on their behalf to, engage in any form of
"general solicitation or general advertising" (within the meaning of Regulation
D) in connection with any offer or sale of the any of the Securities.
(g)
So long
as any of the Securities are outstanding, (i) the Securities shall not be listed
on a national securities exchange registered under section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation system and (ii) neither the
Company nor the Trust shall be an open-end investment company, unit investment
trust or face-amount certificate company that is, or is required to be,
registered under section 8 of the Investment Company Act, and, the Securities
shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3).
(h)
Each of
the Company and the Trust shall furnish to (i) the holders, and subsequent
holders of the Preferred Securities, (ii) Cohen Bros. Securities, LLC (at 1818
Market Street, 28
th
Floor,
Philadelphia, Pennsylvania 19013, or such other address as designated by Cohen
Bros. Securities, LLC) and (iii) any beneficial owner of the Securities
reasonably identified to the Company and the Trust (which identification may be
made by either such beneficial owner or by Cohen Bros.), a duly completed and
executed certificate in the form attached hereto as
Annex
F
,
including the financial statements referenced in such Annex, which certificate
and financial statements shall be so furnished (or caused to be furnished) by
the Company and the Trust not later than forty five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of the Company and
not later than ninety (90) days after the end of each fiscal year of the
Company.
(i)
The
Company will, during any period in which it is not subject to and in compliance
with section 13 or 15(d) of the Exchange Act, or it is not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under
the Exchange Act, shall provide (or cause to be provided) to each holder of the
Securities and to each prospective purchaser (as designated by such holder) of
the Securities, upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the Securities Act.
If the Company and the Trust are required to register under the Exchange Act,
such reports filed in compliance with Rule 12g3-2(b) shall be sufficient
information as required above. This covenant is intended to be for the benefit
of the Purchaser, the holders of the Securities, and the prospective purchasers
designated by the Purchaser and such holders, from time to time, of the
Securities.
(j)
Neither
the Company nor the Trust will, until one hundred eighty (180) days following
the Closing Date, without the Purchaser's prior written consent, offer, sell,
contract to sell, grant any option to purchase or otherwise dispose of, directly
or indirectly, (i) any Preferred Securities or other securities
substantially similar to the Preferred Securities (a) other than as
contemplated by this Purchase Agreement and (b) other than offerings of
"REIT perpetual preferred stock," or (ii) any other securities convertible
into, or exercisable or exchangeable for, any Preferred Securities or other
securities substantially similar to the Preferred Securities.
(k)
HHT will
use its reasonable best efforts to meet the requirements to qualify as a REIT
under Sections 856 through 860 of the Code, effective for the taxable year
ending December 31, 2005 (and each fiscal quarter of such year) and succeeding
taxable years.
(l)
The
Company shall not identify the Purchaser or Cohen Bros. Securities, LLC in a
press release or any other public statement without the consent of Purchaser or
Cohen Bros. Securities, LLC, as applicable provided, that the Company shall not
be prohibited from making any public disclosure that it deems, upon advice of
counsel, to be necessary in order to comply with the requirements of the federal
securities laws.
7.
Payment
of Expenses
.
The
Company, as depositor of the Trust, agrees to pay all costs and expenses
incident to the performance of the obligations of the Company and the Trust
under this Purchase Agreement, whether or not the transactions contemplated
herein are consummated or this Purchase Agreement is terminated, including all
costs and expenses incident to (i) the authorization, issuance, sale and
delivery of the Preferred Securities and any taxes payable in connection
therewith; (ii) the fees and expenses of qualifying the Preferred
Securities under the securities laws of the several jurisdictions as provided in
Section
6(b)
;
(iii) the fees and expenses of the counsel, the accountants and any other
experts or advisors retained by the Company or the Trust; and (iv) the fees and
all reasonable expenses of the Property Trustee,
the
Delaware Trustee,
the
Indenture Trustee and any other trustee or paying agent appointed under the
Operative Documents, including the fees and reasonable disbursements of counsel
for such trustees, which fees shall not exceed a $2,000 acceptance fee, $3,500
for the fees and expenses of Richards, Layton & Finger, P.A., special
Delaware counsel retained by the Delaware Trustee in connection with the
Closing, and $4,000
in
administrative fees annually.
If the
sale of the Preferred Securities provided for in this Purchase Agreement is not
consummated because any condition set forth in
Section
3
hereof
to be satisfied by either the Company or the Trust is not satisfied, because
this Purchase Agreement is terminated pursuant to
Section
9
or
because of any failure, refusal or inability on the part of the Company or the
Trust to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by the
Purchaser, the Company will reimburse the Purchaser upon demand for all
reasonable out-of-pocket expenses (including the fees and expenses of each of
the Purchaser's counsel specified in subparagraph (iv) of the immediately
preceding paragraph) that shall have been incurred by the Purchaser in
connection with the proposed purchase and sale of the Preferred Securities.
Neither the Company or the Trust shall in any event be liable to the Purchaser
for the loss of anticipated profits from the transactions contemplated by this
Purchase Agreement
.
8.
Indemnification
.
a)
The
Sellers agree, jointly and severally to indemnify and hold harmless the
Purchaser and Cohen Bros. Securities LLC (collectively, the "
Indemnified
Parties
") and
the Indemnified Parties' respective partners, directors and officers and each
person who "controls" the Indemnified Parties within the meaning of the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any information or documents furnished or made
available to the Purchaser by or on behalf of the Sellers, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(iii) the breach or alleged breach of any representation, warranty or
agreement of the Sellers contained herein, and agrees to reimburse each such
Indemnified Party, as incurred, for any legal or other expenses reasonably
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Sellers may otherwise have.
(b)
The
Purchaser and Cohen Bros. Securities LLC ("Cohen Bros.") agree to indemnify and
hold harmless the Sellers and each person who "controls" each Seller within the
meaning of the Securities Act or the Exchange Act, and the respective partners,
officers, directors and trustees thereof (each an "Indemnified Party") against
any losses, claims, damages, or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon the breach or alleged breach of
any representation, warranty or agreement of the Purchaser contained in Section
6, and agree to reimburse each such Indemnified Party for all costs, expenses,
damages, losses or liabilities as they are incurred and arising
therefrom.
(c)
Promptly
after receipt by an Indemnified Party under this
Section 8
of
notice of the commencement of any action, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8
,
promptly notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve
the indemnifying party from liability under paragraph (a) or (b), as applicable,
above unless and to the extent that such failure results in the forfeiture by
the indemnifying party of material rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
Indemnified Party other than the indemnification obligation provided in
paragraph (a) or (b), as applicable, above. Purchaser shall be entitled to
appoint counsel to represent the Indemnified Party in any action for which
indemnification is sought; provided, however, that if an Indemnified Party is,
or is affiliated with, Sellers as set forth in Section 8(b) above, the Company
shall be entitled to appoint counsel to represent such Indemnified Party in any
action for which indemnification is sought. An indemnifying party may
participate at its own expense in the defense of any such action;
provided
, that
counsel to the indemnifying party shall not (except with the consent of the
Indemnified Party) also be counsel to the Indemnified Party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all Indemnified Parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party will not, without
the prior written consent of the Indemnified Parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not the Indemnified Parties are actual or potential
parties to such claim, action, suit or proceeding) unless such settlement,
compromise or consent includes an unconditional release of each Indemnified
Party from all liability arising out of such claim, action, suit or
proceeding.
9.
Contribution.
(a)
In order
to provide for just and equitable contribution in circumstances under which the
indemnification provided for in
Section
8
hereof
is for any reason held to be unenforceable for the benefit of an Indemnified
Party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such Indemnified Party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Sellers, on the one
hand, and the Purchaser and Cohen Bros., on the other hand, from the offering of
the Preferred Securities or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above, but also the
relative fault of the Sellers, on the one hand, and the Purchaser and Cohen
Bros., on the other hand, in connection with the statements, omissions or
breaches, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
(b)
The
relative benefits received by the Sellers, on the one hand, and the Purchaser
and Cohen Bros., on the other hand, in connection with the offering of the
Preferred Securities shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of the Preferred Securities (before
deducting expenses) received by the Sellers and the benefits received by the
Purchaser and Cohen Bros. bear to the aggregate of such net proceeds and
commissions.
(c)
The
Sellers, the Purchaser and Cohen Bros. agree that it would not be just and
equitable if contribution pursuant to this
Section
9
were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section
9
. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this
Section
9
shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement, omission or alleged omission or breach or
alleged breach.
(d)
Notwithstanding
any provision of this
Section
9
to the
contrary, the Purchaser and Cohen Bros. shall not be required to contribute any
amount in excess of the benefit received by the Purchaser and Cohen Bros.
pursuant to their involvement in the issuance of the Preferred
Securities.
(e)
No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(f)
For
purposes of this Section 9, the Purchaser, Cohen Bros., each person, if any, who
controls the Purchaser or Cohen Bros. within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the respective partners,
directors and officers of the Purchaser and Cohen Bros. or any such controlling
person shall have the same rights to contribution as the Purchaser and Cohen
Bros., while each partner, officer and director of the Company, each trustee of
the Trust and each person, if any, who controls the Sellers within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Sellers.
10.
Termination;
Representations and Indemnities to Survive
.
This
Purchase Agreement shall be subject to termination in the absolute discretion of
the Purchaser, by written notice given to the Company and the Trust prior to
delivery of and payment for the Preferred Securities, if prior to such time (i)
a downgrading shall have occurred in the rating accorded the Company's debt
securities or preferred stock, if any, by any "nationally recognized statistical
rating organization," as that term is used by the Commission in Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, or such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Company's debt securities or preferred
stock, if any, (ii) the Trust shall be unable to sell and deliver to the
Purchaser at least $25,000,000 stated liquidation value of Preferred Securities,
(iii) a suspension or material limitation in trading in securities generally
shall have occurred on the New York Stock Exchange, (iv) a suspension or
material limitation in trading in any of the Company's securities shall have
occurred on the American Stock Exchange, or (v) there shall have occurred
any outbreak or escalation of hostilities, or declaration by the United States
of a national emergency or war or other calamity or crisis the effect of which
on financial markets is such as to make it, in the Purchaser's judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Preferred Securities. The respective agreements, representations, warranties,
indemnities and other statements of the Company and the Trust or their
respective officers or trustees and of the Purchaser set forth in or made
pursuant to this Purchase Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Purchaser, the
Company or the Trust or any of the their respective officers, directors,
trustees or controlling persons, and will survive delivery of and payment for
the Preferred Securities. The provisions of
Sections
7,
8,
and
9
shall
survive the termination or cancellation of this Purchase Agreement.
11.
Amendments
.
This
Purchase Agreement may not be modified, amended, altered or supplemented, except
upon the execution and delivery of a written agreement by each of the parties
hereto.
12.
Notices
.
(a)
Any
communication shall be given by letter or facsimile, in the case of notices to
the Trust, to it at:
Hersha
Statutory Trust I
c/o
Hersha Hospitality Trust
510
Walnut Street, 9th Floor
Philadelphia,
PA 19106
Facsimile:215-238-0157
Attention:
Ashish Parikh
with a
copy to:
Hunton
& Williams LLP
Riverfront
Plaza, East Tower
951 East
Byrd Street
Richmond,
Virginia 23219
Facsimile:
(804) 788-8214
Attention:
James S. Seevers, Jr.
in the
case of notices to the Company, to it at:
Hersha
Hospitality Trust
510
Walnut Street, 9th Floor
Philadelphia,
PA 19106
Facsimile:
215-238-0157
Attention:
Ashish Parikh
and in
the case of notices to the Purchaser, to it at:
Merrill
Lynch International
c/o Cohen
Bros. Securities, LLC
1818
Market Street
Philadelphia,
Pennsylvania 19103
Facsimile:
(215) 861-7898
Attention:
Asset Backed Securities
with a
copy to:
Bracewell
& Giuliani LLP
111
Congress Avenue, Suite 2300
Austin,
TX 78701-4043
Facsimile:
(512) 472-9123
Attention:
David B. Jones
(b)
Any such
communication shall take effect, in the case of a letter, at the time of
delivery and in the case of facsimile, at the time of dispatch.
(c)
Any
communication not by facsimile shall be confirmed by letter but failure to send
or receive the letter of confirmation shall not invalidate the original
communication.
13.
Successors
and Assigns
.
This
Purchase Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing expressed
or mentioned in this Purchase Agreement is intended or shall be construed to
give any person other than the parties hereto and the affiliates, directors,
officers, employees, agents and controlling persons referred to in
Section
8
hereof
and their successors, assigns, heirs and legal representatives, any right or
obligation hereunder. None of the rights or obligations of the Company or the
Trust under this Purchase Agreement may be assigned, whether by operation of law
or otherwise, without the Purchaser's prior written consent. The rights and
obligations of the Purchaser under this Purchase Agreement may be assigned by
the Purchaser without the Company's or the Trust's consent; provided that the
assignee assumes the obligations of the Purchaser under this Purchase
Agreement.
14.
Applicable
Law
.
THIS
PURCHASE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW).
15.
Submission
to Jurisdiction
.
ANY
LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS PURCHASE AGREEMENT 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 PURCHASE
AGREEMENT, 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 PURCHASE AGREEMENT.
16.
Counterparts
and Facsimile
.
This
Purchase Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
This Purchase Agreement may be executed by any one or more of the parties hereto
by facsimile.
IN
WITNESS WHEREOF, this Purchase Agreement has been entered into as of the date
first written above.
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Hersha
Hospitality Limited
Partnership
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By:
Hersha Hospitality Trust, its General Partner
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By:
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Name:
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Title:
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Hersha
Statutory Trust I
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By:
Hersha Hospitality Limited Partnership, as Depositor
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By:
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Name:
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Title:
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Merrill
Lynch International
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By:
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Name:
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Title:
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List
of Significant Subsidiaries
Ownership
of Subsidiaries
|
Entity
|
Ownership
|
State
of Formation
|
Other
Qualification
|
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Hersha
Hospitality Trust
|
NA
|
MD
|
PA
|
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Hersha
Hospitality Limited Partnership (“HHLP”)
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NA
|
VA
|
PA
|
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Hersha
Hospitality, LLC (“HH LLC”)
|
100%
BY HHLP
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VA
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MD,
PA
|
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Hersha
Hospitality Limited Liability Company - Carlisle
|
100%
BY HHLP
|
DE
|
PA
|
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Hersha
Hospitality Limited Liability Company - Danville
|
100%
BY HHLP
|
DE
|
PA
|
|
Hersha
Hospitality Limited Liability Company - Duluth I
|
100%
BY HHLP
|
DE
|
GA
|
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Hersha
Hospitality Limited Liability Company - Duluth II
|
100%
BY HHLP
|
DE
|
GA
|
|
Hersha
Hospitality Limited Liability Company - Hershey
|
100%
BY HHLP
|
DE
|
-
|
|
Hersha
Hospitality Limited Liability Company - New Columbia
|
100%
BY HHLP
|
DE
|
-
|
|
Hersha
Hospitality Limited Liability Company - New Cumberland,
|
100%
BY HHLP
|
DE
|
GA
|
|
Hersha
Hospitality Limited Liability Company - Newnan
|
100%
BY HHLP
|
DE
|
GA
|
|
Hersha
Hospitality Limited Liability Company - Peachtree
|
100%
BY HHLP
|
DE
|
GA
|
|
Hersha
Hospitality Limited Liability Company - Selinsgrove
|
100%
BY HHLP
|
DE
|
PA
|
|
Hersha
Hospitality Limited Liability Company - West Hanover,
|
100%
BY HHLP
|
DE
|
PA
|
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HHLP
Valley Forge Associates
|
99%
BY HHLP
1%
BY HH LLC
|
PA
|
-
|
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944
Associates
|
99%
BY HHLP
1%
by Hersha Hospitality Limited Liability Company-Carlisle
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PA
|
-
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1244
Associates
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-New
Cumberland
|
PA
|
-
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Entity
|
Ownership
|
State
of Formation
|
Other
Qualification
|
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2144
Associates - Hershey
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-Hershey
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PA
|
-
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2144
Associates - New Columbia
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-New
Columbia
|
PA
|
-
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2144
Associates - Selinsgrove
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability
Company-Selinsgrove
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PA
|
-
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2444
Associates
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-West
Hanover
|
PA
|
-
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2844
Associates
|
99%
by HHLP
1%
by HH LLC
|
PA
|
-
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3044
Associates
|
99%
by HHLP and
1%
by HH LLC
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PA
|
MD
|
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3144
Associates
|
99%
by HHLP
1%
by HH LLC
|
PA
|
-
|
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3544
Associates
|
99%
by HHLP
1%
by HH LLC
|
PA
|
-
|
|
5644
Duluth I Associates
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-Duluth I
|
PA
|
GA
|
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5744
Duluth II Associates
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-Duluth II
|
PA
|
GA
|
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5844
Newnan Associates
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-Newnan
|
PA
|
-
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5944
Peachtree Associates
|
99%
by HHLP
1%
by Hersha Hospitality Limited Liability Company-Peachtree
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PA
|
GA
|
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5544
JFK III Associates
|
99%
by HHLP
1%
by HH LLC
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PA
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NY
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Metro
Two Hotel, LLC
|
100%
by HHLP
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FL
|
NY
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Entity
|
Ownership
|
State
of Formation
|
Other
Qualification
|
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HT/CNL
Metro Hotels, LP
|
33.33%
by HHLP
66.67%
by CNL Hospitality Partners, LP
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DE
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-
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Chelsea
Grand East, LLC
|
100%
by HT / CNL Metro Hotels, LP
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NY
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-
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44
New England Management Company
|
100%
by HHLP
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VA
|
-
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HHM
Leasehold Interests, Inc.
|
99%
by Hersha Hospitality Management LP
1%
by HHLP
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DE
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-
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Hersha
CNL TRS, Inc.
|
100%
by HT / CNL Metro Hotels, LP
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DE
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-
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Inn
America, LLC
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50%
by HHLP
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NJ
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-
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Properties
Encumbered by Liens Relating to Financing
|
Property
|
Lender
|
|
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Hampton
Inn
|
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Carlisle
|
Lehman
Brothers
|
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Danville
|
Lehman
Brothers
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Selinsgrove
|
Lehman
Brothers
|
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Hershey
|
Waypoint
Bank
|
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Newnan
|
GECC
|
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Peachtree
City
Cheslea,
NY
Linden,
NJ
|
GECC
GECC
Yardville
National Bank
|
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Holiday
Inn
|
|
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Harrisburg
|
Lehman
Brothers
|
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Holiday
Inn Express
|
|
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Hershey
|
Lehman
Brothers
|
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New
Columbia
|
Lehman
Brothers
|
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Duluth
|
Lehman
Brothers
|
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Long
Island City, NY
Harrisburg,
PA
|
GE
Capital
Sovereign
Bank (Line of Credit)
|
|
Doubletree
Club
|
|
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Jamaica,
NY
|
GE
Capital
|
|
Comfort
Inn/Suites
|
|
|
Harrisburg
|
Lehman
Brothers
|
|
Duluth
Frederick,
MD
|
Lehman
Brothers
Peoples
Bank
|
|
Mainstay
Suites/Sleep Inn
|
|
|
Valley
Forge, PA
|
Sovereign
Bank (Line of Credit)
|
|
Mainstay
Suites
|
|
|
Frederick
MD
|
Peoples
Bank
|
|
|
|
|
Line
of Credit
|
Sovereign
Bank
|
|
|
|
|
Hilton
Garden Inn
|
|
|
Edison,
NJ
|
Yardville
National Bank
|
|
Glastonbury,
CT
|
GE
Capital
|
|
Gettysburg,
PA
|
M&T
Bank
|
|
|
|
|
Residence
Inn
|
|
|
|
Hersha
Capital, Inc.
|
|
Framingham,
MA
|
Central
Cooprative Bank
|
|
Property
|
Lender
|
|
Courtyard
by Marriott
|
|
|
Ewing,
NJ
|
Yardville
National Bank
|
|
|
|
|
Four
Points Sheraton
|
|
|
Revere,
MA
|
Citizens
Bank of Massachusetts
|