EXECUTION
VERSION
SECOND
OMNIBUS AMENDMENT TO
REPURCHASE
DOCUMENTS
(Wachovia
Transaction with the NorthStar Entities)
THIS
SECOND OMNIBUS AMENDMENT TO REPURCHASE DOCUMENTS
,
dated
as of June 6, 2006 (this “
Second
Omnibus Amendment
”),
is
entered into by and among
NRFC
WA HOLDINGS, LLC
,
as an
existing seller (together with its successors and permitted assigns,
“
NRFC
”)
and
NRFC
WA HOLDINGS II, LLC
,
as an
existing seller (together with its successors and permitted assigns,
“
NRFC II
”
and,
collectively with NRFC, the “
Existing
Sellers
”),
NRFC
WA HOLDINGS III, LLC
,
as a
new seller (together with its successors and permitted assigns, “
NRFC III
”),
NRFC
WA HOLDINGS IV, LLC
,
as a
new seller (together with its successors and permitted assigns, “
NRFC IV
”),
NRFC
WA HOLDINGS V, LLC
,
as a
new seller (together with its successors and permitted assigns, “
NRFC V
”),
NRFC
WA HOLDINGS VI, LLC
,
as a
new seller (together with its successors and permitted assigns, “
NRFC VI
”),
NRFC
WA HOLDINGS VII, LLC
,
as a
new seller (together with its successors and permitted assigns, “
NRFC VII
”),
NRFC
WA HOLDINGS VIII, LLC
,
as a
new seller (together with its successors and permitted assigns, “
NRFC VIII
”)
(the
Existing Sellers and NRFC III, NRFC IV, NRFC V, NRFC VI,
NRFC VII and NRFC VIII are collectively referred to herein as the
“
Sellers
”),
WACHOVIA
BANK, NATIONAL ASSOCIATION
,
as the
buyer (in such capacity, together with its successors and assigns, the
“
Buyer
”),
NORTHSTAR
REALTY FINANCE CORP.
(together with its successors and permitted assigns, “
NorthStar
”),
as
the existing guarantor (together with its successors and permitted assigns,
the
“
Existing
Guarantor
”)
and
NORTHSTAR
REALTY FINANCE L.P.
,
as a
new guarantor (together with its successors and permitted assigns, the
“
Operating
Partnership
”
and
together with the Existing Guarantor, the “
Guarantors
”),
NRFC
SUB-REIT CORP.
,
as the
pledgor (together with its successors and permitted assigns, the “
Pledgor
”),
WELLS
FARGO BANK, NATIONAL ASSOCIATION
(f/k/a
Wells Fargo Bank Minnesota, N.A.), as the custodian (in such capacity, together
with its successors and permitted assigns, the “
Custodian
”),
and
WACHOVIA
BANK, NATIONAL ASSOCIATION
,
as the
swap counterparty (in such capacity, together with its successors and assigns,
the “
Swap
Counterparty
”)
and as
the bank under the Account Agreement and the Securities Account Control
Agreement (in such capacity, together with its successors and assigns, the
“
Bank
”).
Capitalized terms used and not otherwise defined herein shall have the meanings
given to such terms in the Repurchase Agreement (as defined
below).
R
E
C
I
T
A
L
S
WHEREAS
,
the
Existing Sellers, the Existing Guarantor and the Buyer are parties to that
certain Master Repurchase Agreement (including all annexes, exhibits and
schedules thereto), dated as of July 13, 2005, as amended by that certain
First Amendment to Master Repurchase Agreement, dated as of August 24, 2005
(“
Amendment
No. 1
”),
that
certain Second Amendment to Master Repurchase Agreement, dated as of
September 20, 2005 (“
Amendment
No. 2
”),
that
certain Third Amendment to Master Repurchase Agreement, dated as of
September 30, 2005 (“
Amendment
No. 3
”),
that
certain Omnibus Amendment to Repurchase Documents and Joinder, dated as of
October 21, 2005 (“
Omnibus
Amendment
”),
that
certain Fourth Amendment to Master Repurchase Agreement, dated as of October
28,
2005 (“
Amendment
No. 4
”)
and
that certain Fifth Amendment to Master Repurchase Agreement, dated as of
February 28, 2006 (“
Amendment
No. 5
”)
(as
such Master Repurchase Agreement is
amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from
time to time,
including pursuant to Amendment No. 1, Amendment No. 2, Amendment
No. 3, the Omnibus Amendment, Amendment No. 4, Amendment No. 5
and this Second Omnibus Amendment, the “
Repurchase
Agreement
”);
WHEREAS
,
the
Existing Sellers and the Existing Guarantor desire to make certain modifications
to the Repurchase Documents, including, without limitation, adding additional
Sellers and an additional Guarantor;
WHEREAS
,
the
Buyer is willing to modify the Repurchase Documents as requested by the Existing
Sellers and the Existing Guarantor on the terms and conditions specified herein;
and
WHEREAS
,
the
Pledgor, the Custodian, the Swap Counterparty and the Bank are parties to other
Repurchase Documents and related agreements that may be affected, directly
or
indirectly, by this Second Omnibus Amendment and desire to evidence their
agreement to the amendments and modifications set forth herein.
NOW
THEREFORE
,
in
consideration of the foregoing recitals, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto, intending to be legally bound, agree as follows:
Section
1
.
Amendments
to Repurchase Agreement
.
(
a
)
The
following definitions in
Section 1(a)
of
Annex I
to the
Repurchase Agreement are hereby amended and restated in their entirety as
follows:
(
1
)
“
Advance
Rate
:
With
respect to a Mortgage Asset of a certain Class and, as applicable, the
applicable Type of Underlying Mortgaged Property, the “Maximum Advance Rate” set
forth in the applicable column on
Schedule 1
to the
Fee Letter or, with respect to Preferred Equity Interests and Construction
Loans, the “Advance Rate” set forth in the related Confirmation.”
(
2
)
“
Aggregate
Unpaids
:
At any
time, an amount equal to the sum of the aggregate Purchase Price outstanding
for
all Transactions, the aggregate Price Differential outstanding, the aggregate
Margin Deficits outstanding, Breakage Costs (if any), Increased Costs (if any),
Taxes (if any), Additional Amounts (if any), Late Payment Fees (if any), any
fee
due under any fee letter or the Repurchase Documents (including, without
limitation, the Fee Letter and the Custodial Fee Letter) and all other amounts
owed by the Sellers or any other Person to the Buyer, any Affected Party or
any
other Person under or with respect to this Repurchase Agreement, the Repurchase
Documents or any Transaction entered into pursuant thereto (whether due or
accrued).”
(
3
)
“
Asset
Value
:
As of
any date of determination for each Eligible Asset or Purchased Asset, as
applicable, with respect to a Mortgage Asset or Purchased Asset, as applicable,
of a certain Class, the lesser of (a) (i) for each Mortgage Asset or
Purchased Asset, as applicable, other than as provided in
clause (a)(ii)
of this
definition, the product of the Book Value of such Mortgage Asset or Purchased
Asset, as applicable,
times
the
Advance Rate applicable thereto and (ii) subject to
Section 26
of
Annex I
to this
Agreement, for each Over-Advance Purchased Asset prior to an Event of Default,
the Book Value of such Over-Advance Purchased Asset and (b) (i) for
each Mortgage Asset or Purchased Asset, as applicable, other than as provided
in
clause (b)(ii)
of this
definition, the product of the Market Value of such Mortgage Asset or Purchased
Asset, as applicable,
times
the
Advance Rate applicable thereto and (ii) subject to
Section 26
of
Annex I
to this
Agreement, for each Over-Advance Purchased Asset prior to an Event of Default,
the Market Value of such Over-Advance Purchased Asset, in all cases under
clauses (a)
and
(b)
of this
definition taking into account the Maximum LTV percentages, applicable to such
Mortgaged Asset or Purchased Asset, as applicable, set forth on
Schedule 1
to the
Fee Letter (or, in the case of Preferred Equity Interests and Construction
Loans, to the extent applicable, as set forth in the related Confirmation);
provided
,
however
,
the
Asset Value may be reduced in the Buyer’s discretion by an amount determined by
the Buyer in its discretion (which amount may, in the Buyer’s discretion, be
reduced to zero (0)), with respect to each Mortgage Asset or Purchased
Asset, as applicable (A) in respect of which one (1) or more
eligibility requirements set forth in
Schedule 1
to this
Repurchase Agreement is not satisfied in any respect (assuming each such
criteria is determined as of the date the Asset Value is determined), in each
case without regard to any Seller’s knowledge or lack of knowledge thereof and
without regard to any Seller’s representations or warranties with respect to its
knowledge or lack of knowledge thereof, and, in the Buyer’s determination in its
discretion, the same impacts, impairs or affects the Market Value or Book Value
of such Mortgage Asset or Purchased Asset, (B) in respect of which the
complete Mortgage Asset File has not been delivered to the Custodian within
the
time period required by the Custodial Agreement, (C) which is a Table
Funded Purchased Asset in respect of which the Mortgage Asset File has not
been
delivered to the Custodian within three (3) Business Days following the
Purchase Date, or (D) which has been released from the possession of the
Custodian under the Custodial Agreement to a Seller or an Affiliate for a period
in excess of twenty (20) calendar days.”
(
4
)
“
Bridge
Loan
:
A
performing Whole Loan that is otherwise an Eligible Asset except that the
Underlying Mortgaged Property is not stabilized or is otherwise considered
to be
in a transitional state, which exceptions shall be disclosed in writing to
the
Buyer and such exceptions must be acceptable to the Buyer in its discretion,
which acceptance may, in the Buyer’s discretion, be conditioned on additional
terms, conditions and requirements with respect to such Bridge Loan;
provided
,
however
,
the
debt and equity fundings for each Bridge Loan must be sufficient to finance
100%
of the completion of the improvements to the related Underlying Mortgaged
Property or there must exist sufficient net operating income or interest
reserves or guaranties to cover the debt service for all Indebtedness related
to
the Underlying Mortgaged Property.”
(
5
)
“
CDO
Closing Date
:
The
Business Day occurring after the date of this Second Omnibus Amendment on which
some or all of the Purchased Assets are repurchased by the Sellers and sold
into
the CDO Securitization Transaction.”
(
6
)
“
CDO
Securitization Transaction
:
A CDO
securitization transaction involving some or all of the Purchased Assets engaged
in by NStar Real Estate CDO VIII.”
(
7
)
“
Class
:
With
respect to a Mortgage Asset, such Mortgage Asset’s classification as a Whole
Loan, a Junior Interest, a Mezzanine Loan, a Bridge Loan, a CMBS Security,
a CTL
Loan, a Subordinate CTL Loan, Senior Secured Bank Debt or a Preferred Equity
Interest.”
(
8
)
“
Construction
Loan
:
A
performing Whole Loan, the Underlying Mortgaged Property for which has received
all necessary entitlements and approvals to develop the Underlying Mortgaged
Property and construct improvements thereon in a manner consistent with the
applicable Seller’s representations to the Buyer regarding such construction,
which information shall be set forth in the related Confirmation, such loan
and
the documents related thereto are otherwise acceptable to the Buyer in its
discretion and all construction related documents are delivered to the Custodian
as a part of the Mortgage Asset File for such Whole Loan.”
(
9
)
“
Debt
Service Coverage Ratio
or
DSCR
:
With
respect to any Mortgage Asset
or
Purchased Asset, as applicable,
as
of any
date of determination, for the period of time to be determined by
the
Buyer
in
its reasonable discretion
(it
being
understood that it is the Buyer’s intent to make the determination based on the
period of twelve (12) consecutive complete calendar months preceding such
date (or, if such Mortgage Asset was originated less than twelve (12)
months from the date of determination, the number of months from the date of
origination)
,
the
ratio
of (a) the aggregate Net Cash Flow in respect of the Underlying Mortgaged
Properties relating to such Mortgage Asset
or
Purchased Asset, as applicable,
for
such
period to (b) the sum of (i) the aggregate amount of all amounts due
for such period in respect of all Indebtedness that was outstanding from time
to
time during such period that is secured, directly or indirectly, by such
Underlying Mortgaged Properties (including, without limitation, by way of a
pledge of the equity of the owner(s) of such Underlying Mortgaged Properties)
or
that is otherwise owing by the owner(s) of such Underlying Mortgaged Properties,
including, without limitation, all scheduled principal and/or interest payments
due for such period in respect of each Mortgage Asset or Purchased Asset, as
applicable,
that
is
secured or supported by such Underlying Mortgaged Properties
plus
(ii) the amount of all Ground Lease payments to be made in respect of such
Underlying Mortgaged Properties during such period, as any of the foregoing
elements of DSCR may be adjusted by the Buyer as determined by the Buyer in
its
discretion;
provided
,
however
,
that
,
with
respect to Junior Interests, Mezzanine Loans, Bridge Loans, Preferred Equity
Interests and Subordinate CTL Loans that are also Junior Interests or Mezzanine
Loans,
all
such
calculations shall be made taking into account any senior or
pari
passu
debt or
other obligations, including debt or other obligations secured directly or
indirectly by the applicable Underlying Mortgaged Property;
provided
,
further
,
however
,
the
DSCR shall not be less than the Minimum DSCR.
”
(
10
)
“
Defaulted
Mortgage Asset
:
Any
Mortgage Asset (a) that is ninety (90) days or more delinquent or
(b) for which there is a non-monetary default (beyond any applicable notice
and cure period) under the related Mortgage Loan Documents (including, with
respect to Preferred Equity Interests, amounts that are not paid current for
the
relevant period under the terms of the Mortgage Loan Documents).”
(
11
)
“
Delinquent
Mortgage Asset
:
A
Mortgage Asset that is thirty (30) or more days, but less than
ninety (90) days, delinquent under the related Mortgage Loan Documents
(including, with respect to Preferred Equity Interests, amounts that are not
paid current for the relevant period under the terms of the Mortgage Loan
Documents).”
(
12
)
“
Eligible
Asset
:
A
Mortgage Asset that, as of any date of determination, (i) is not a Defaulted
Mortgage Asset or Delinquent Mortgage Asset; (ii) satisfies each of the
eligibility criteria set forth on
Schedule 1
hereto
in all material respects; (iii) with respect to the portion of such
Mortgage Asset to be acquired by the Buyer, the funding obligations have been
satisfied in full and there is no unfunded commitment with respect thereto
(unless otherwise approved by the Buyer in its discretion); (iv) has been
approved in writing by the Buyer in its discretion; (v) has, to the extent
applicable, an LTV not in excess of the Maximum LTV; (vi) has, to the
extent applicable, a DSCR equal to or greater than the Minimum DSCR;
(vii) is not a loan to an operating business (other than a hotel);
(viii) the purchase of such Eligible Asset will not violate any applicable
Sub-Limit; (ix) the Underlying Mortgage Property and the Borrower and its
Affiliates are domiciled in the United States (unless otherwise approved by
the
Buyer subject to such additional terms and conditions as the Buyer may require
in its discretion); and (x) such Mortgage Asset is denominated and payable
in Dollars;
provided
,
however
,
notwithstanding a Mortgage Asset’s failure to conform to the criteria set forth
above (including, without limitation, a Mortgage Asset with a single or split
rating by a Rating Agency), the Buyer may, in its discretion and subject to
such
terms, conditions and requirements and Advance Rate and Pricing Spread
adjustments as the Buyer may require in its discretion, designate in writing
any
such non-compliant Mortgage Asset as an Eligible Asset, which designation shall
not be deemed a waiver of the requirement that all other Purchased Assets and
all other Mortgage Assets submitted for purchase by the Buyer, whether existing
or in the future, must be Eligible Assets.”
(
13
)
“
Fee
Letter:
The
Amended and Restated Fee Letter, dated as of June 6, 2006, among the
Sellers and the Buyer,
as
amended, modified, restated, replaced, waived, substituted, supplemented or
extended from time to time.
”
(
14
)
“
Guarantor:
Individually and collectively, as the context may require, NorthStar Realty
Finance Corp., a Maryland corporation (together with its successors and
permitted assigns) and NorthStar Realty Finance L.P., a Delaware limited
partnership (together with its successors and permitted assigns), as joint
and
several guarantors under the Guaranty.”
(
15
)
“
Liquidity
:
An
amount equal to the (a) sum of (without duplication) (i) the amount of
unrestricted cash and unrestricted Cash Equivalents, (ii) Availability
under this Agreement and (iii) the amount of Borrowing Capacity under the
Other Credit Facilities in the aggregate,
less
,
(b) amounts necessary to satisfy Margin Deficits under this Repurchase
Agreement and the facilities described under
(a)(iii)
of this
definition of Liquidity.”
(
16
)
“
Loan-to
Value Ratio
or
LTV
:
With
respect to any Mortgage Asset or Purchased Asset (other than any CMBS Security),
as applicable, as of any date of determination, the ratio of the outstanding
principal amount of such Mortgage Asset or Purchased Asset, as applicable,
to
the market value of the related Underlying Mortgaged Property at such time
(or,
in the case of the Bridge Loans, the cost of completion of the intended
improvements), as determined by the Buyer, (i) in connection with the
initial purchase of a Mortgage Asset only and to the extent a Current Appraisal
is available, based on the Current Appraisal, as the LTV may be adjusted by
the
Buyer as the Buyer determines in its discretion, and, (ii) in all other
cases, as the Buyer may determine in its discretion based on such sources of
information as the Buyer may determine to rely on in its discretion;
provided
,
however
,
that,
with respect to Junior Interests, Mezzanine Loans, Bridge Loans, Preferred
Equity Interests and Subordinate CTL Loans that are also Junior Interests or
Mezzanine Loans, all such calculations shall be made taking into account any
senior or
pari
passu
debt
or
other obligations, including debt or other obligations
secured
directly or indirectly by the applicable Underlying Mortgaged Property;
provided
,
further
,
however
,
the LTV
shall not exceed the Maximum LTV.”
(
17
)
“
Maximum
Amount
:
Means
$200,000,000, provided that, during the Temporary Increase Period, upon the
written request of the Sellers, the Buyer may, in its discretion (and in all
cases subject to the Buyer obtaining internal credit approval), increase the
Maximum Amount one (1) or more times to an aggregate amount not to exceed
$500,000,000, which increase(s) shall be set forth in writing and acknowledged
by the Sellers and the Guarantors;
provided
,
however
,
after
the Temporary Increase Period, (i) in the event Purchased Assets are
repurchased and sold into the CDO Securitization Transaction on or prior to
the
Temporary Increase Expiration Date and the Sellers repay the Temporary Increase
Indebtedness plus all accrued and unpaid Price Differential thereon and all
related Breakage Costs on or before the Temporary Increase Expiration Date,
the
Maximum Amount shall be $200,000,000 and (ii) in the event the Sellers do
not satisfy
clause (i)
of this
definition, the Maximum Amount shall be the sum of $200,000,000 and the highest
Temporary Increase Amount, which sum shall not exceed $500,000,000;
provided
,
further
,
however
,
on and
after the Facility Maturity Date, the Maximum Amount shall mean the aggregate
Purchase Price outstanding for all Transactions.”
(
18
)
“
Maximum
LTV
:
With
respect to any Eligible Asset (other than any CMBS Security) at any time, the
Loan-to-Value Ratio for the related Underlying Mortgaged Property set forth
on
Schedule 1
to the
Fee Letter under the heading “End LTV” or “End LTC” (or, in the case of
Preferred Equity Interests and Construction Loans to the extent applicable,
as
set forth in the related Confirmation under the same or similar headings;
provided
,
however
,
in no
event shall the Maximum LTV for a Construction Loan exceed 85%) for the
applicable Class of such Mortgage Asset and, as applicable, the applicable
Type
of Underlying Mortgaged Property;
provided
,
however
,
the
Maximum LTV shall take into account any senior or
pari
passu
debt
or
other obligations
,
including debt or other obligations
secured
directly or indirectly by the applicable Underlying Mortgaged
Property.”
(
19
)
“
Minimum
DSCR
:
With
respect to any Mortgage Asset or Purchased Asset (other than any CMBS Security),
as applicable, at any time, the DSCR for the related Underlying Mortgaged
Property set forth on
Schedule 1
to the
Fee Letter under the heading “In-Place DSCR” (or, in the case of Preferred
Equity Interests and Construction Loans to the extent applicable, as set forth
in the related Confirmation under the same or similar headings;
provided
,
however
,
in no
event shall the Maximum LTV for a Construction Loan exceed 85%) for the
applicable Class of such Mortgage Asset and, as applicable, the applicable
Type
of Underlying Mortgaged Property;
provided
,
however
,
the
Minimum DSCR shall take into account any senior or
pari
passu
debt
or
other obligations
,
including debt or other obligations
secured
directly or indirectly by the applicable Underlying Property.”
(
20
)
“
Mortgage
Asset
:
A Whole
Loan, a Junior Interest, a Mezzanine Loan, a Bridge Loan, a CMBS Security,
a CTL
Loan, a Subordinate CTL Loan, Senior Secured Bank Debt or a Preferred Equity
Interest, (i) the Underlying Mortgaged Property for which is included in
the categories for Types of Mortgage Assets, (ii) that is listed on a
Confirmation and (iii) for which the Custodian has been instructed by a
Seller to hold the related Mortgage Asset File for the Buyer pursuant to the
Custodial Agreement;
provided
,
however
,
Mortgage Assets shall not include any Retained Interest (if any) (unless
approved by the Buyer in its discretion).”
(
21
)
“
Pricing
Rate
:
With
respect to each Transaction, at any date of determination, a rate per annum
equal to the sum of (a) the applicable Rate on such date
plus
(b) the applicable Pricing Spread for such Eligible Asset on such date, as
such Pricing Spreads are set forth in the Fee Letter (or, in the case of the
Preferred Equity Interests and Construction Loans, as set forth in the related
Confirmation).”
(
22
)
“
Pricing
Spread
:
The
financing spreads set forth on
Schedule 1
to the
Fee Letter (or, in the case of the Preferred Equity Interests and Construction
Loans, as set forth in the related Confirmation) corresponding to the Classes
and, as applicable, Types of Mortgage Assets set forth therein;
provided
,
however
,
from
and after an Event of Default, the Pricing Spread for each Transaction shall
automatically be increased by an additional 500 basis points above and
beyond the applicable Pricing Spread set forth in the Fee Letter (or, in the
case of the Preferred Equity Interests and Construction Loans, as set forth
in
the Confirmation).”
(
23
)
“
Repurchase
Date
:
The
earlier of (i) the Facility Maturity Date, (ii) the date that is 364
days from the Purchase Date or (iii) the Business Day on which any Seller
is to repurchase the Purchased Assets from the Buyer (a) as specified by
any Seller and agreed to by the Buyer in the related Confirmation or (b) if
a Transaction is terminable by any Seller on demand, the date determined in
accordance with
Paragraph 3(a)(ix)
of
this
Repurchase Agreement, as such dates in
clauses (i)
,
(ii)
and
(iii)
above
may be modified by application of the provisions of
Paragraph 3
or
11
of this
Repurchase Agreement.”
(
24
)
“
Repurchase
Documents
:
This
Repurchase Agreement, the Custodial Agreement, the Pledge and Security
Agreement, the Account Agreement, the Security Account Control Agreement, the
Fee Letter, the Guaranty, the Assignments, the Confirmations, the Custodial
Fee
Letter, all UCC financing statements (and amendments thereto) filed pursuant
to
the terms of this Repurchase Agreement or any other Repurchase Document, the
Preferred Equity Pledge and Security Agreement, any joinder agreement executed
by a Seller and any additional document, certificate or agreement, the execution
of which is necessary or incidental to or desirable for performing or carrying
out the terms of the foregoing documents.”
(
25
)
“
Seller
:
Individually and collectively as the context requires, NRFC WA Holdings, LLC,
,
a Delaware limited liability company, NRFC WA Holdings II, LLC, a Delaware
limited liability company, NRFC WA Holdings III, LLC, a Delaware limited
liability company, NRFC WA Holdings IV, LLC, a Delaware limited liability
company, NRFC WA Holdings V, LLC, a Delaware limited liability company,
NRFC WA Holdings VI, LLC, a Delaware limited liability company, NRFC WA
Holdings VII, LLC, a Delaware limited liability company, NRFC WA
Holdings VIII, LLC, a Delaware limited liability company, and any other
Person that becomes a party to the Repurchase Documents as a Seller, in such
case together with their successors and permitted assigns. Each Seller shall
be
jointly and severally liable under the Repurchase Documents.”
(
26
)
“
Sub-Limit
:
With
respect to the characteristics of the Mortgage Assets or Purchased Assets,
as
applicable:
(a)
the
aggregate Purchase Price for all outstanding Transactions involving Mezzanine
Loans shall not exceed 67% of the Maximum Amount;
(b)
the
aggregate Purchase Price for all outstanding Transactions involving CTL Loans
and/or Subordinate CTL Loans shall not exceed 50% of the Maximum
Amount;
(c)
the
aggregate Purchase Price for all outstanding Transactions involving Ground
Leases shall not exceed 35% of the Maximum Amount;
(d)
the
aggregate Purchase Price for all outstanding Transactions involving hotels
shall
not exceed 45% of the Maximum Amount;
(e)
the
aggregate Purchase Price for all outstanding Transactions involving Construction
Loans shall not exceed 25% of the Maximum Amount;
(f)
the
aggregate Purchase Price for all outstanding Transactions involving Underlying
Mortgage Properties located in the same metropolitan statistical area shall
not
exceed 50% of the Maximum Amount;
(g)
the
aggregate Purchase Price for any single outstanding Transaction or for multiple
Transactions to a single Borrower (including any Affiliate of a Borrower) shall
not exceed 40% of the Maximum Amount;
(h)
the
aggregate Purchase Price for all outstanding Transactions involving CMBS
Securities or Senior Secured Bank Debt rated BB- or below by any Rating Agency
shall not exceed 25% of the Maximum Amount;
(i)
the
aggregate Purchase Price for all outstanding Transactions involving Preferred
Equity Interests shall not exceed 25% of the Maximum Amount; and
(j)
the
aggregate Over-Advance Purchase Price for all Over-Advance Purchased Assets
shall not exceed $50,000,000.”
(
27
)
“
Temporary
Increase Amount
:
An
amount determined by the Buyer in its discretion, but in any event, not greater
than $300,000,000.”
(
28
)
“
Temporary
Increase Expiration Date
:
The
earlier of (a) March 23, 2007 (or, if such day is not a Business Day,
the next succeeding Business Day) and (b) the CDO Closing
Date.”
(
29
)
“
Temporary
Increase Indebtedness
:
The
amount of the Purchase Price outstanding that exceeds
$200,000,000.”
(
30
)
“
Temporary
Increase Period
:
The
period of time from the date of this Second Omnibus Amendment to and including
the Temporary Increase Expiration Date.”
(
31
)
“
Type
:
With
respect to a Mortgage Asset, the classification of the Underlying Mortgaged
Property as one of the following: multifamily, mobile home park, retail, office,
industrial, hotel, self-storage facility, condominium conversions and entitled
land.”
(
32
)
“
Underlying
Mortgaged Property
:
(a) In the case of a Whole Loan, the Mortgaged Property securing the Whole
Loan, (b) in the case of a Junior Interest, the Mortgaged Property securing
such Junior Interest (if the Junior Interest is of the type described in
clause (b)
of the
definition thereof), or the Mortgaged Property securing the mortgage loan in
which such Junior Interest represents a junior participation (if the Junior
Interest is of the type described in
clause (a)
of the
definition thereof), (c) in the case of a Mezzanine Loan or a Junior
Interest in a Mezzanine Loan, the Mortgaged Property that secures the senior
mortgage loan, (d) in the case of a Bridge Loan, CTL Loan or Subordinate
CTL Loan, the Mortgaged Property securing the Whole Loan, Junior Interest or
Mezzanine Loan, as applicable, (e) in the case of a CMBS Security, the
Mortgaged Properties backing such CMBS Securities, (f) in the case of
Senior Secured Bank Debt, the Mortgaged Property, if any, securing such Senior
Secured Bank Debt and (g) in the case of a Preferred Equity Interest, the
Mortgaged Property owned directly or indirectly by the Preferred Equity
Grantor.”
(
33
)
“
Underwriting
Package
:
With
respect to any Mortgage Asset (other than a CMBS Security), the Underwriting
Package shall include, to the extent applicable, (i) a copy of the Current
Appraisal or, if unavailable, any other recent appraisal, (ii) the current
rent roll, (iii) a minimum of two (2) years of property level
financial statements to the extent available, (iv) the current financial
statements of the Borrowers under the Mortgage Asset, and, if such Mortgage
Asset is not a Whole Loan, the Borrower under the Commercial Real Estate Loan
to
the extent provided to or reasonably available to the applicable Seller upon
request, (v) the loan documents, Governing Documents and title
commitment/policy to be included in the Mortgage Asset File, together with
copies of any appraisals, environmental reports, studies or assessments (to
include, at a minimum, a phase I report), evidence of zoning compliance,
property management agreements, assignments of property management agreements,
contracts, licenses and permits, in each case to the extent in the a Seller’s
possession or reasonably available to the a Seller and, if the Mortgage Asset
is
purchased by the Buyer, assignments of such documents by the Seller in blank
to
the extent covered by assignments in blank delivered to the Custodian,
(vi) any financial analysis, site inspection, market studies, environmental
reports and any other diligence conducted by or provided to the a Seller and
(vii) such further documents or information as the Buyer may reasonably
request. With respect to any CMBS Security, the Underwriting Package shall
consist of, to the extent applicable, (i) the related prospectus or
offering circular, (ii) all structural and collateral term sheets and all
other computational or other similar materials provided to the a Seller in
connection with its acquisition of such CMBS Security, (iii) all
distribution date statements issued in respect thereof during the immediately
preceding twelve (12) months (or, if less, since the date such CMBS
Security was issued), (iv) all monthly reporting packages issued in respect
of such CMBS Security during the immediately preceding twelve (12) months
(or, if less, since the date such CMBS Security was issued), (v) all Rating
Agency pre-sale reports, (vi) all asset summaries and any other due
diligence materials, including, without limitation, reports prepared by third
parties, provided to the a Seller in connection with its acquisition of such
CMBS Security, and (vii) such further documents or information as the Buyer
may reasonably request.”
(
34
)
“
Whole
Loan
:
A
performing Commercial Real Estate whole loan (including, without limitation,
a
Construction Loan) secured by a first priority perfected security interest
in
the Underlying Mortgaged Property.”
(
b
)
Terms
defined in this Second Omnibus Amendment and any other amendment are
incorporated into and made a part of the Repurchase Documents. In addition,
the
following new definitions are added to
Section 1(a)
of
Annex I
to the
Repurchase Agreement as follows:
(
1
)
“
BofA
Facility
:
That
certain facility evidenced by the Master Loan, Guarantee and Security Agreement,
dated as of September 28, 2005, among NorthStar Realty Finance L.P.,
NorthStar Realty Finance Corp., NS Advisors LLC, the other entities listed
as
guarantors on the signature pages thereof and Bank of America, N.A. (as amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from
time to time).”
(
2
)
“
Borrowing
Capacity
:
The
ability to obtain draws or advances in the discretion of a Guarantor or any
Affiliate or Subsidiary of a Guarantor in Dollars and within two (2)
Business Days of the request therefor and to use or apply such draws or advances
to repay amounts under the Repurchase Documents or other
Indebtedness.”
(
3
)
“
Maximum
Aggregate Over-Advance Purchase Price Amount
:
$50,000,000.”
(
4
)
“
Other
Credit Facilities
:
Any
warehouse, repurchase, loan or credit facility provided by a national banking
association or any syndicate thereof (or any other financial institution
approved by the Buyer in its reasonable discretion) to a Guarantor or any
Affiliate or Subsidiary of a Guarantor, including, without limitation, the
BofA
Facility.”
(
5
)
“
Over-Advance
Advance Rate
:
Defined
in the Fee Letter.”
(
6
)
“
Over-Advance
Draw Fee
:
Defined
in the Fee Letter.”
(
7
)
“
Over-Advance
Pricing Spread
:
Defined
in the Fee Letter.”
(
8
)
“
Over-Advance
Purchase Price
:
The
amount of the Purchase Price paid by the Buyer for an Over-Advance Purchased
Asset
minus
the
Purchase Price that would have been paid for such Purchased Asset applying
the
Advance Rate otherwise applicable to such Purchased Asset without giving effect
to this Second Omnibus Amendment.”
(
9
)
“
Over-Advance
Purchased Asset
:
Defined
in
Section 26
of
Annex
I
to the
Repurchase Agreement.”
(
10
)
“
Over-Advance
Repayment Date
:
Defined
in the Fee Letter.”
(
11
)
“
Permitted
Indebtedness
:
With
respect to Preferred Equity Interests, Indebtedness that is permitted under
the
related Mortgage Loan Documents and disclosed in writing to the Buyer in a
Transaction Request and a Confirmation.”
(
12
)
“
Preferred
Equity Grantor
:
The
entity in which a Preferred Equity Interest represents an
investment.”
(
13
)
“
Preferred
Equity Interest
:
The
entire Capital Stock representing the preferred equity interest in an entity
that owns directly or indirectly Commercial Real Estate, including, but not
limited to, all equity interests representing a dividend on any of the Capital
Stock of the Preferred Equity Grantor or representing a distribution or return
of capital upon or in respect of the Capital Stock of the Preferred Equity
Grantor, in each case as it relates to a Preferred Equity Interest;
provided
,
however
,
(i) such Preferred Equity Interest must contain a synthetic maturity
feature acceptable to the Buyer in its sole and absolute discretion,
(ii) the Buyer’s funding of the Preferred Equity Interest is subject to
regulatory and compliance criteria, (iii) the Buyer reserves the right in
its reasonable discretion to require that each Preferred Equity Interest be
acquired by and transferred to the Buyer by a special purpose entity as a
co-Seller under the Agreement and for the co-Seller to execute the Buyer’s then
current form of joinder agreement as a condition to the purchase of the
Preferred Equity Interest and (iv) the Preferred Equity Interest is
structured so as to avoid consolidation of the Preferred Equity Interest and
the
other equity interests in the Preferred Equity Grantor, as required by customary
legal and GAAP accounting requirements applicable to the Seller and the Buyer.
All references to, and calculations required to be made in respect of, any
principal and/or interest associated with any Preferred Equity Interest shall
be
deemed to refer to the face amount of such Preferred Equity Interest and the
preferred return or yield (however such terms are denominated, as set forth
in
the related Mortgage Loan Documents), whether payable or accrued.”
(
14
)
“
Preferred
Equity Interest Documents
:
The
related Governing Documents of the Preferred Equity Grantor together with any
certificate, instrument or other tangible evidence of the Capital Stock in
the
Preferred Equity Grantor.”
(
15
)
“
Preferred
Equity Pledge and Security Agreement
:
The
Amended and Restated Preferred Equity Interest Pledge and Security Agreement,
dated as of even date with this Second Omnibus Amendment, between the Sellers
and Buyer relating to the Preferred Equity Interests, as such agreement is
amended, modified, waived, supplemented, extended, restated or replaced from
time to time.”
(
16
)
“
Temporary
Ramp-Up Asset
:
Defined
in
Section 24
of
Annex I
to the
Repurchase Agreement.”
(
17
)
“
Temporary
Ramp-Up Pricing Terms
:
Defined
in the Fee Letter.”
(
c
)
The
third
to the last sentence of
Paragraph 6(a)(ii)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“For
the
avoidance of doubt and not by way of limitation of the foregoing, (A) each
Purchased Item, including all Income related thereto, secures the obligations
of
each Seller with respect to all other Transactions and the obligations with
respect to all other Purchased Items, including those Purchased Assets that
are
junior in priority to the Purchased Item in question, (B) an Event of
Default by any Seller is a default by all Sellers and the Buyer may pursue
its
remedies in connection therewith against any of the Purchased Items and/or
against the assets and Properties of any or all Sellers, and (C) if an
Event of Default has occurred and is continuing, no Purchased Item will be
released from the Buyer’s Lien or transferred to the Sellers until the
Obligations are indefeasibly paid in full
.
”
(
d
)
Paragraph 10(a)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(a)
Organization
and Good Standing
.
Each of
the Sellers and the Guarantors has been duly organized, and is validly existing
as a limited liability company, with respect to each Seller, and as a
corporation or limited partnership, as applicable, with respect to the
Guarantors, in good standing, under the laws of the state of its organization
or
formation, with all requisite power and authority to own or lease its Properties
and conduct its business as such business is presently conducted, and had,
at
all relevant times, and now has, all necessary power, authority and legal right
to acquire, own, sell and pledge the Purchased Items.”
(
e
)
Paragraph 10(b)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(b)
Due
Qualification
.
Each of
the Sellers and the Guarantors is duly qualified to do business and is in good
standing as a limited liability company, corporation or partnership, as
applicable, and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of its Property or the conduct
of
its business requires such qualification, licenses or approvals.”
(
f
)
Paragraph 10(ss)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(ss)
REIT
Status
.
Subject
to
Section 5(mm)
of
Annex I
to the
Repurchase Agreement, NorthStar qualifies as a REIT.”
(
g
)
The
first
paragraph of
Paragraph 11
of
Annex I
to the
Repurchase Agreement is amended as follows:
“(i)
the
“or”
is deleted at the end of
clause (xvii)
;
and
(ii)
at
the
end of
clause (xviii)
,
before
“(each an “
Event
of Default
”)”,
the
following provision shall be inserted: “or (xix) any of the Sellers and/or
any of the Guarantors fails to comply with or violates in any respect
Section 24
and/or
Section 26
of
Annex I
to the
Repurchase Agreement and the same continues unremedied for a period of
(a) two (2) Business Days, with respect to any monetary obligation,
and (b) in all other cases, five (5) Business Days, after notice from
the Buyer.””
(
h
)
Clause (D)
of
Section 3(b)(vi)
of
Annex I
to the
Repurchase Agreement is amended by substituting “NorthStar” for “Guarantor” each
time the term Guarantor appears therein.
(
i
)
The
following new
Section 3(b)(xxii)
is added
to the end of
Section 3
of
Annex I
to the
Repurchase Agreement as follows (and, in connection therewith,
Section 3(b)(xx)
of
Annex I
to the
Repurchase Agreement is amended by deleting the “and” at the end thereof and
Section 3(b)(xxi)
Annex
I
to the
Repurchase Agreement is amended by substituting a “; and” for the “.” at the end
thereof):
“(xxii)
for
each
Preferred Equity Interest, the applicable Seller has executed and delivered
all
instruments and documents and has taken all further action reasonably necessary
and desirable or that the Buyer has reasonably requested in order to
(i) perfect and protect the Buyer’s security interest in such Preferred
Equity Interest (including, without limitation, execution and delivery of one
or
more control agreements reasonably acceptable to the Buyer, and any and all
other actions reasonably necessary to satisfy the Buyer that the Buyer has
obtained a first priority perfected security interest in such Preferred Equity
Interest); (ii) enable the Buyer to exercise and enforce its rights and
remedies hereunder in respect of such Preferred Equity Interest; and
(iii) otherwise effect the purposes of this Agreement, including, without
limitation and if requested by the Buyer, having delivered to the Buyer
irrevocable proxies in respect of such Preferred Equity Interest.”
(
j
)
The
second to the last line of
Section 5(i)(i)
of
Annex I
to the
Repurchase Agreement is amended by substituting “NorthStar” for
“Guarantor”.
(
k
)
Section 5(s)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(i)
Maintenance
of Liquidity
.
NorthStar shall not permit, for any calendar quarter, its Liquidity for such
Test Period to be less than $12,000,000, $5,000,000 of which shall consist
of
cash or Cash Equivalents.
(ii)
Maintenance
of Tangible Net Worth
.
NorthStar shall not permit, for any Test Period, its Tangible Net Worth
(including NorthStar’s minority interest in the Operating Partnership) at any
time to be less than the sum of (A) $225,000,000
plus
(B) an amount equal to 75% of the aggregate net proceeds after costs and
expenses received by any Guarantor or any Subsidiaries of any Guarantor in
connection with the offering or issuance of any Capital Stock of any Guarantor
or Subsidiaries of any Guarantor after the Closing Date.
(iii)
Maintenance
of Debt to Book Equity
.
NorthStar shall not permit, for any Test Period, the ratio of its recourse
Indebtedness to Tangible Net Worth at any time to be greater than .80 to
1.0.
(iv)
Interest
Coverage
.
The
Sellers shall not permit, for any Test Period, the ratio of (A) the sum of
Consolidated Adjusted EBITDA for all Sellers for such Test Period to
(B) Interest Expense for all Sellers for such Test Period to be less than
1:5 to 1:0.”
(
l
)
Section 5(mm)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(mm)
NorthStar
Status
.
NorthStar shall remain listed on a nationally recognized securities exchange
in
good standing. NorthStar may change its status as a REIT provided it remains
in
compliance with the Financial Covenants in all respects.”
(
m
)
The
following new
Section 5(pp)
is added
to the end of
Section 5
of
Annex I
to the
Repurchase Agreement as follows:
“
Preferred
Equity Interests
.
The
Sellers shall not permit any Capital Stock that is the subject of a Preferred
Equity Interest to consist of an interest in an entity other than a partnership
or limited liability company and, with respect to such limited partnership
and
limited liability company interests, shall not permit any such interest to:
(i) be dealt in or traded on a securities exchange or in a securities
market or (ii) be held in a Securities Account. The Sellers shall execute
and deliver, or cause to be executed or delivered, to the Buyer (or the
Custodian on its behalf) such agreements, documents and instruments as the
Buyer
may reasonably require to perfect its security interest in any such Capital
Stock.”
(
n
)
Section 24
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“
Section 24
Temporary
Increase Period
.
During
the Temporary Increase Period, provided there exists no Event of Default and
the
Buyer has agreed to a Temporarily Increase Amount of the Maximum Amount in
accordance with the definition thereof, (a) with respect to Mortgage Assets
that are eligible for the CDO Securitization Transaction, as determined by
the
Buyer in its discretion, and that the Buyer has agreed to purchase (other than
Over-Advance Purchased Assets), the Sellers may elect, on or before the related
Purchase Date by written notice to the Buyer, the Temporary Ramp-Up Pricing
Terms in lieu of the applicable Advance Rate and Pricing Spread contained in
the
Fee Letter (or the Confirmations in the case of Preferred Equity Interests
and
Construction Loans) that are otherwise applicable to such Mortgage Assets (each
such Purchased Asset, a “
Temporary
Ramp-Up Asset
”),
(b) the Unused Fee shall accrue in the manner described in the Fee Letter,
(c) an upsize fee shall be payable by the Sellers to the Buyer on the
Temporary Increase Amount only in accordance with
clause (iii)
of the
penultimate sentence of this
Section 24
and
(d) the Buyer may, in its discretion, on a monthly basis adjust the Advance
Rates under the Temporary Ramp-Up Pricing Terms for one (1) or more
Temporary Ramp-Up Assets, and, if any Advance Rate under the Temporary
Ramp-Pricing Terms is adjusted downward, the Sellers shall, no later than
two (2) Business Days from the date of the adjustment, make principal
payments to the Buyer as necessary so that the Purchase Price outstanding for
each applicable Temporary Ramp-Up Asset is equal to or less than the Purchase
Price based on the adjusted Advance Rate, and, in connection with such principal
payments, pay any Price Differential due thereon and any Breakage Costs payable
in connection therewith;
provided
,
however
,
if
there exists no Event of Default and the principal amount due in connection
with
such adjustment is equal to or less than $5,000,000, the Sellers may repay
such
adjustment amounts pursuant to clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, as and when funds are available therefor under such clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement. Subject to the terms herein, in the event the Sellers
elect the Temporary Ramp-Up Pricing Terms for any Purchased Asset as provided
above and any such Temporary Ramp-Up Assets are not repurchased by the Sellers
and sold into the CDO Securitization Transaction on or before the Temporary
Increase Expiration Date, (i) the Temporary Ramp-Up Pricing Terms shall
cease to be effective with respect to all Purchased Assets from and after the
Temporary Increase Expiration Date and, thereafter, the Advance Rate and Pricing
Spread for each such Purchased Asset shall be the applicable Pricing Spread
and
Advance Rate set forth in the Fee Letter (or the Confirmations in the case
of
Preferred Equity Interests and Construction Loans), (ii) the Sellers shall,
on or before the Temporary Increase Expiration Date, make principal payments
to
the Buyer as necessary so that the Purchase Price outstanding for each such
Temporary Ramp-Up Asset is equal to or less than the Purchase Price based on
the
applicable Advance Rate set forth in the Fee Letter (or the Confirmations in
the
case of Preferred Equity Interests and Construction Loans), and, in connection
with such principal payments, pay any Price Differential due thereon and any
Breakage Costs payable in connection therewith, (iii) the Seller shall pay
to the Buyer on the Temporary Increase Expiration Date an upsize fee as provided
in the Fee Letter, (iv) the Maximum Amount shall thereafter be the sum of
$200,000,000 and the highest Temporary Increase Amount, which sum shall not
be
in excess of $500,000,000, in all cases subject to the definition of Maximum
Amount, (v) the Unused Fee shall commence accruing based on the full amount
of the Maximum Amount specified in the preceding
clause (iv)
,
subject
to the terms of the Fee Letter, (vi) the limit on the Guaranteed
Indebtedness set forth in
Section 1
of the
Guaranty shall be increased automatically to 10% of the new Maximum Amount
determined in accordance with
clause (iv)
above
and (vii) the Buyer may, in its discretion, adjust any or all Advance Rates
set forth in
Schedule 1
to the
Fee Letter (or the Confirmations in the case of Preferred Equity Interests
and
Construction Loans) with respect to the existing Purchased Assets to such
Advance Rates which, when considered on a portfolio basis, would result in
an
investment grade rating in a rated CDO securitization for such Purchased Assets,
and, if such adjustment is made, the Sellers shall make principal payments
to
the Buyer as necessary so that the Purchase Price outstanding for all Purchased
Assets is equal to or less than the Purchase Price for all Purchased Assets
based on the adjusted Advance Rates, which principal payments shall be applied
to the outstanding Purchase Price of one (1) or more Purchased Assets, as
determined by the Buyer in its discretion, and, in connection with such
principal payments, pay any Price Differential due thereon and any Breakage
Costs payable in connection therewith;
provided
,
however
,
if
there exists no Event of Default and the principal amount due in connection
with
such adjustment is equal to or less than $5,000,000, the Sellers may repay
such
adjustment amounts pursuant to clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, as and when funds are available therefor under such clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement. Notwithstanding the Buyer’s agreement to this Second
Omnibus Amendment, including, without limitation, the preceding sentence, the
Buyer, has, retains and does not waive any of its rights and/or benefits under
the Repurchase Documents, including without limitation, the ability to determine
at any time the Asset Value of one or more Purchased Assets.”
(
o
)
The
following new
Section 26
is added
to
Annex I
to the
Repurchase Agreement as follows:
“
Over-Advances
.
(a)
During
the Commitment Period and provided no Event of Default is then existing, the
Buyer may, in its discretion, purchase certain Mortgage Assets from the Sellers
using the Over-Advance Advance Rate (each an “
Over-Advance
Purchased Asset
”),
subject in each case to the satisfaction of the following requirements
(i) the Purchase Price for each Over-Advance Purchased Asset shall not
exceed a last dollar LTV of 85%, in each case as determined by the Buyer in
its
discretion, (ii) each such Over-Advance Purchased Asset shall be an
Eligible Asset, (iii) as a part of the Price Differential payment otherwise
due on each Payment Date with respect to each such Over-Advance Purchased Asset,
the Pricing Spread on the Over-Advance Purchase Price shall be the Over-Advance
Pricing Spread, (iv) on the Purchase Date for, and as a condition to the
advance of any such Over-Advance Purchase Price, the Sellers shall pay to the
Buyer a one-time draw fee for each Over-Advance Purchased Asset in the amount
of
the product of the Over-Advance Draw Fee and the amount of the related
Over-Advance Purchase Price, such fee not being applicable to any re-draw
following repayment in connection with such Over-Advance Purchased Asset,
(v) the aggregate Over-Advance Purchase Price shall not exceed the Maximum
Aggregate Over-Advance Purchase Price Amount, (vi) the Sellers shall repay
the Over-Advance Purchase Price for each such Over-Advance Purchased Asset
on or
before the earlier of (A) the Over-Advance Repayment Date and (B) the
Repurchase Date, (vii) the Sellers shall not be permitted to obtain any
Over-Advance Purchase Price at any time when the aggregate Purchase Price
outstanding exceeds 85% of the Asset Value of all Purchased Assets,
(viii) at no time shall the aggregate Purchase Price outstanding exceed 85%
of the Asset Value of all Purchased Assets, and, if the aggregate Purchase
Price
outstanding does exceed 85% of the Asset Value at any time (the “
Excess
Purchase Price
”),
the
Sellers shall immediately make principal payments to the Buyer in an amount
necessary to eliminate the Excess Purchase Price, which principal payments
shall
be applied to the outstanding Purchase Price of one (1) or more Purchased
Assets, as determined by the Buyer in its discretion, and, in connection with
the payment of such principal payments, the Sellers shall pay any Price
Differential due thereon and any Breakage Costs payable in connection therewith;
provided
,
however
,
if the
Excess Purchase Price is equal to or less than $5,000,000, the Sellers may
repay
such Excess Purchase Price pursuant to
clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, as and when funds are available therefor under
clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, (ix) no Over-Advance Purchase Price shall be
permitted for Construction Loans or Mortgage Assets that are collateralized
by
unimproved land, condominium projects or highly transitional properties,
(x) the Sellers, the Guarantors and the Pledgor are otherwise in compliance
with all of the terms, conditions, covenants, obligations, representations,
warranties and requirements contained in the Repurchase Documents, including,
without limitation, the Financial Covenants and (xi) in addition to the
Liquidity required under the Financial Covenants, NorthStar shall also maintain
Liquidity in an amount equal to 50% of the amount of Over-Advance Purchase
Price
outstanding at any given time. During the Commitment Period, provided there
is
no event of Default existing, amounts repaid under this
Section 26
may be
readvanced subject to and in accordance with the terms of this
Section 26
and the
other provisions of the Repurchase Documents.”
(
p
)
Schedule 1
to
Annex I
to the
Repurchase Agreement is amended by adding thereto
Schedule 1
,
Part VII
,
which
is attached hereto as
Exhibit A
and is
incorporated herein by reference.
(
q
)
The
Exhibits, Schedules and Annexes to the Repurchase Agreement are deemed amended,
as necessary, to include Preferred Equity Interests.
Section
2
.
Amendments
to Custodial Agreement
.
(
a
)
The
term
“Basic Mortgage Asset Documents” contained in
Section 1.1
and
Annex 13
of the
Custodial Agreement is amended and restated as follows:
“
Basic
Mortgage Asset Documents
:
Means
the following original (except as otherwise permitted in
Section 3.1
below),
fully executed and completed documents (in each case together with an original
Assignment, an original assignment or allonge, as applicable, of each Basic
Mortgage Asset Document, executed in blank (or, where permitted by
Subsection 3.1(j)
,
an
original omnibus assignment executed in blank) and, as applicable, an original
assignment, assignment and assumption agreement or any similar document required
by the terms of the applicable Mortgage Loan Documents to effectuate an
assignment of such Mortgage Asset, executed by the Seller in blank),
(i) with respect to any Whole Loan, CTL Loan or Subordinate CTL Loan that
is a Whole Loan, the Mortgage Note, the Mortgage, the Assignment of Mortgage,
the Assignment of Leases, the Security Agreement, and, as applicable, the Pledge
Agreement, the stock, certificates or other instruments representing Pledged
Stock and any related stock, certificate or other similar power, (ii) with
respect to any Mezzanine Loan or Subordinate CTL Loan that is a Mezzanine Loan,
the Mezzanine Note, the Pledge Agreement, the stock, certificate or other
instruments representing Pledged Stock, any stock, certificate or other similar
power, and, as applicable, any Mortgage, Assignment of Mortgage, Assignment
of
Leases and Security Agreement, (iii) with respect to any Junior Interest or
Subordinate CTL Loan that is a Junior Interest, the Junior Interest Note and
the
Participation Agreement, (iv) with respect to a Bridge Loan, the Basic
Mortgage Asset Documents for a Whole Loan, (v) with respect to a CMBS
Security, the CMBS Security Certificate (if any), (vi) with respect to
Senior Secured Bank Debt, the Senior Secured Bank Debt Note(s), the Mortgage
(if
any), the Assignment of Mortgage (if any), the Assignment of Leases (if any),
the Security Agreement (if any), the Pledge Agreement (if any), the stock,
certificates or other instruments representing Pledged Stock (if any), any
related stock, certificate or other similar power and any other certificated
collateral and (vii) with respect to any Preferred Equity Interest, the
Preferred Equity Interest Documents.”
(
b
)
Section 3.1(a)
of the
Custodial Agreement is amended by deleting “and” at the end of
clause (xxv)
,
deleting the period at the end of
clause (xxvi)
and
substituting “; and”, and adding the following new
clause (xxvii)
.
“(xxvii)
all
construction related documents related to such Whole Loan to the extent the
Whole Loan is a Construction Loan.”
(
c
)
Section 3.1(b)(iii)
of the
Custodial Agreement is amended and restated as follows:
“(iii)
(A) if
the Seller is the holder of any original document referred to in
Subsections 3.1(a)
,
3.1(c)
or
3.1(g)
,
as
applicable (other than
clauses (xxiv)
,
(xxv)
and
(xxvi)
in the
case of
Subsection 3.1(a)
and
other than the last three (3) clauses of
Subsections
3.1(c)
or
3.1(g)
),
the
Seller shall deliver the same to the Custodian as part of the Mortgage Asset
File, together with (1) the originals of all intervening assignments
thereof, showing a complete chain of assignment from the Originator to the
Seller, and (2) an original assignment of the related document, agreement
or instrument, executed by the Seller in blank or (B) if the Seller is not
the
holder of any such original document referred to in
Subsections 3.1(a)
,
3.1(c)
or
3.1(g)
,
as
applicable (other than
clauses (xxiv)
,
(xxv)
and
(xxvi)
in the
case of
Subsection 3.1(a)
and
other than the last three (3) clauses of
Subsections 3.1(c)
or
3.1(g)
),
the
Seller shall deliver an original of such document (if it has possession of
or
has an ability to obtain possession of an original, or, if not, a copy of such
documents) to the Custodian as part of the Mortgage Asset File (together with
originals or copies, as applicable, of all intervening assignments thereof,
showing a complete chain of assignment from the Originator to the Senior
Interest Holder or other holder);
provided
,
however
,
an
assignment of such documents, instruments and agreement referred in this
clause (iii)(B)
from the
Seller in blank shall not be required.”
(
d
)
Section 3.1(e)
of the
Custodial Agreement is amended by changing
clause (viii)
to
(ix)
and
inserting the following new
clause (viii)
:
“(viii)
with
respect to CMBS Securities that are uncertificated securities, an original
executed agreement granting control of such CMBS Security to the Buyer and
providing that, after a Default or Event of Default, the issuer shall comply
with the instructions of the Buyer without the consent of any Seller of any
other Person.”
(
e
)
Section 3.1(h)
of the
Custodial Agreement is amended by deleting “
Subsection (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
and
(g)
”
in
the
last sentence and substituting in its place “
Subsection 3.1(a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
,
(g)
and
(k)
”.
(
f
)
The
following new
Section 3.1(k)
is added
to the Custodial Agreement:
With
respect to each Preferred Equity Interest:
“(i)
the
original Preferred Equity Interest Documents (other than the Governing
Documents) (if any), which Preferred Equity Interest Documents shall (A) be
endorsed (either on the face thereof or pursuant to a separate allonge) by
the
most recent endorsee prior to the applicable Seller, without recourse, to the
order of the applicable Seller and further reflect a complete, unbroken chain
of
endorsement from the Originator to the applicable Seller and (B) be
accompanied by a separate allonge pursuant to which the applicable Seller has
endorsed such Preferred Equity Interest Documents, without recourse, in
blank;
(ii)
certified
copies of the Governing Documents of the Preferred Equity Grantor;
(iii)
with
regard to the Preferred Equity Grantor, an original secretary’s certificate,
certificate of incumbency and resolution authorizing, among other things, the
issuance of the Preferred Equity Interest only if the Preferred Equity Documents
do not so provide;
(iv)
the
original Assignment required by the Repurchase Agreement;
(v)
original
good standing certificates for the Preferred Equity Grantor (and any entity
signing for each entity) in the jurisdiction of its formation;
(vi)
to
the
extent applicable, the original related Interest Rate Protection Agreement
and
the original assignments thereof to the Buyer;
(vii)
if
applicable, an original power of attorney;
(viii)
originals
of each agreement, letter of credit, cash management agreement, environmental
indemnity, guaranty or other indemnity agreement relating to the subject
Preferred Equity Interest, together with (A) originals of any intervening
assignments of each such document that precede the assignment thereof referred
to in
clause (k)(viii)(B)
,
(B) if the applicable Seller is not the Originator, an original assignment
of each such document, in favor of the applicable Seller, executed by the
Originator (or, if such document was previously assigned, by the most recent
assignee), and (C) an original assignment of each such document, in blank,
executed by the applicable Seller;
(ix)
if
applicable, an undated original stock, membership or similar power covering
each
Preferred Equity Interest, duly executed in blank with, if the Buyer so
requests, signature guaranteed;
(x)
any
applicable Servicing Agreement or Pooling and Servicing Agreement;
(xi)
the
original assignment document(s) (if any) required under the terms of the
Mortgage Loan Documents to effectuate an assignment thereunder of the Mortgage
Asset by the applicable Seller, executed by the applicable Seller in blank,
together with (A) originals of any intervening assignments that precede the
assignment referred to in
clause (k)(xi)(B)
,
and
(B) if the applicable Seller is not the Originator, original assignment
documents, in favor of the applicable Seller, executed by the Originator (or,
if
such document was previously assigned by the most recent assignee);
(xii)
if
applicable, a copy of the UCC financing statement(s) filed with respect to
the
Preferred Equity Interests and naming the Originator as secured party, together
with copies of any intervening UCC financing statements or UCC financing
statement amendments, as applicable, disclosing assignments prior to the
assignment to the applicable Seller, in each case with evidence of filing in
the
applicable jurisdiction indicated thereon;
(xiii)
if
applicable, if the applicable Seller is not the Originator, a copy of a UCC
financing statement or UCC financing statement amendment, as applicable, in
favor of the applicable Seller, with evidence of filing in the applicable
jurisdiction indicated thereon, disclosing the assignment of each UCC financing
statements referred to in
clause (k)(xii)
above,
executed by the Originator (or, if such UCC financing statement(s) was/were
previously assigned, by the most recent assignee);
(xiv)
if
applicable, a copy of a UCC financing statement or UCC financing statement
amendment, as applicable, in blank, in form suitable for filing, disclosing
the
assignment of each UCC financing statement referred to in
clause (k)(xii)
above,
executed by the applicable Seller (if applicable);
(xv)
with
respect to each Preferred Equity Interest that is an uncertificated security,
an
original executed agreement granting control of such Preferred Equity Interest
to the Buyer and providing that the Preferred Equity Interest Grantor, after
a
Default or Event of Default, shall comply with the instructions of the Buyer
with respect to the Preferred Equity Interest without the consent of any Seller
or any other Person;
(xvi)
either
a
Seller’s Release Letter or a Warehouse Lender’s Release Letter;
(xvii)
any
additional documents identified on any Mortgage Asset File Checklist delivered
to the Custodian; and
(xviii)
any
additional documents required to be added to the Mortgage Asset File by the
Buyer pursuant to
Section 3.2(a)
of this
Agreement or otherwise required to be delivered pursuant to this Agreement,
the
Repurchase Agreement or the related Servicing Agreement.”
(
g
)
Sections 3.1(j)(iv)
,
5.1
(last
sentence),
5.2
(last
sentence),
7.3
(first
and fourth sentences),
11.2(b)(iii)(A)
and
(B)
and
Annex 4
(
Paragraphs 2
,
7
and
11
)
of the
Custodial Agreement are amended by adding “the Preferred Equity Interest
Documents,” after the term “Mezzanine Note” or “Mezzanine Notes”, as applicable,
each time such terms appear therein.
(
h
)
Section 3.2(a)
of the
Custodial Agreement is amended by adding the following to the end
thereof:
“With
respect to each Preferred Equity Interest, the Custodian shall, no later than
one (1) Business Day before the requested Purchase Date, review the
Mortgage Asset File delivered by the Seller and provide by Electronic
Transmission a written summary report to the Buyer describing the documents
contained in the Mortgage Asset File and any exceptions to the delivery
requirements set forth in
Section 3.1(k)
.
Based
on the summary report provided by the Custodian to the Buyer, the Buyer will
provide the Custodian and the Seller with written notice as to whether the
list
of Mortgage Loan Documents received by the Custodian is acceptable to the Buyer
in its discretion or whether the Buyer will require in its discretion, as a
condition to the purchase of the Preferred Equity Interest, that the Seller
deliver additional documents to the Custodian to be included as a part of
Mortgage Asset File for the Preferred Equity Interest. Regardless of the
proposed Purchase Date for a Preferred Equity Interest, and subject to the
satisfaction of all other conditions contained the Repurchase Documents, the
Buyer will not purchase any Preferred Equity Interest until it has the
opportunity to review and consider the summary report from the Custodian and,
as
applicable, the Seller provides to the Custodian with any additional documents
requested by the Buyer;
provided
,
however
,
the
Buyer may waive or modify in writing all or any part of this requirement as
the
Buyer determines in its discretion.”
(
i
)
Annex 9
of the
Custodial Agreement is amended by adding “Preferred Equity Interest Documents/”
after the term “Mezzanine Note” or “Mezzanine Notes”, as applicable, each time
such term appears therein in
Paragraphs 2
,
3
,
4
,
5
and
9
.
(
j
)
Annex 12
of the
Custodial Agreement is amended by adding the following paragraphs to the end
of
Annex 12
:
|
“131.
|
|
Preferred
Equity Interest Document (other than Governing Documents) (if
any)
|
|
132.
|
|
Allonge/endorsement
to Preferred Equity Interest Document (other than Governing Documents)
(if
any)
|
|
|
|
Endorsed
to: ________________
|
|
|
|
List
complete chain: ______________
|
|
133.
|
|
Governing
Documents for Preferred Equity Grantor (and any entity signing
for such
entity)
|
|
134.
|
|
Good
Standing Certificate (and any entity signing for such
entity)
|
|
135.
|
|
Secretary’s
Certificate/certificate of incumbency/resolutions of Preferred
Equity
Interest Grantor (and any entity signing for such
entity)
|
|
136.
|
|
Other
agreements executed in connection with a Preferred Equity
Interest
|
|
137.
|
|
Interim
assignment of other Preferred Equity Interest
agreements
|
|
|
|
Assignee
(if any): _________________
|
|
138.
|
|
Assignment
of other Preferred Equity Interest agreements
|
|
|
|
Assignee:
Seller
|
|
139.
|
|
Assignment
of other Preferred Equity Interest agreements
|
|
|
|
Assignee:
blank
|
|
140.
|
|
Original
assignment document(s) required under the terms of the Mortgage
Loan
Documents to effectuate an assignment thereunder of the Mortgage
Asset by
the applicable Seller, executed in blank by the applicable
Seller
|
|
141.
|
|
Interim
assignment
|
|
|
|
Assignee
(if any): ______________________
|
|
142.
|
|
Assignment
to applicable Seller
|
|
143.
|
|
UCC
Financing Statement (Preferred Equity Interest) -
|
|
|
|
Filing
jurisdiction = _____________________
|
|
144.
|
|
UCC
assignment/UCC Financing Statement
|
|
|
|
amendment
(Preferred Equity Interest)
|
|
|
|
Filing
jurisdiction = _____________________
|
|
|
|
Assignee
= ___________________________
|
|
145.
|
|
UCC
assignment/UCC Financing Statement
|
|
|
|
amendment
(Preferred Equity Interest)
|
|
|
|
Filing
jurisdiction = _______________________
|
|
|
|
Assignee
=
blank
|
|
146.
|
|
With
respect to any CMBS Security or Preferred Equity Interest that
is an
uncertificated security, an executed control agreement
|
|
147.
|
|
All
construction related documents for any Construction
Loan
|
|
148.
|
|
Interim
assignment of construction documents
|
|
|
|
Assignee
(if any): ___________________
|
|
149.
|
|
Assignment
of construction documents
|
|
|
|
Assignee
=
Seller
|
|
150.
|
|
Assignment
of construction documents
|
|
|
|
Assignee
=
blank”
|
(
k
)
Annex 13
of the
Custodial Agreement is hereby deleted in its entirety and is replaced with
the
Annex 13
which is
attached hereto as
Exhibit D
and is
incorporated herein by reference.
Section
3
.
Amendments
to Guaranty
.
(
a
)
Section 1
of the
Guaranty is amended and restated as follows:
“1.
Limited
Guaranty of Payment and Performance
.
Each
Guarantor hereby
absolutely,
primarily, unconditionally and irrevocably guarantees, as primary obligor and
as
guarantor of payment and performance and not merely as surety or guarantor
of
collection,
to
the
Buyer
subject
to the terms of this
Section 1
(i) the payment, when due, by acceleration or otherwise, of the Guaranteed
Indebtedness
,
and
(ii)
the
full
and timely performance of, and compliance with, each and every duty, agreement,
undertaking, indemnity and obligation of the Sellers under the Repurchase
Documents strictly in accordance with the terms thereof (collectively, the
“
Guarantee
Obligations
”),
in
each case, however created, arising or evidenced, whether direct or indirect,
primary or secondary, absolute or contingent, joint or several and whether
now
or hereafter existing or due or to become due
.
For the
purposes hereof, the term “
Guaranteed
Indebtedness
”
means
any and all Indebtedness of the Sellers or the Pledgor to the
Buyer
and
any other Affected Party
in
connection with the Repurchase Documents, including, but not limited to,
the
aggregate
Repurchase Price outstanding, the aggregate Price Differential outstanding
and
all other Aggregate Unpaids and Obligations outstanding, howsoever evidenced,
whether existing now or arising hereafter, as such Guaranteed Indebtedness
may
be amended, modified, extended, renewed or replaced from time to time;
provided
,
however
,
that,
notwithstanding anything to the contrary contained herein, the Guarantors shall
not be liable for any Guaranteed Indebtedness in excess of ten percent
(10%) of the then Maximum Amount (not including any temporary increases in
the
Maximum Amount during the Temporary Increase Period), which Maximum Amount
the
Guarantors acknowledge and agree may be adjusted from time to time under the
terms of the Repurchase Agreement, which adjustments would result in automatic
adjustments to the Guarantors’ liability under this Guaranty. Notwithstanding
any provision to the contrary contained herein or in any of the other Repurchase
Documents,
the
obligations of the Guarantors hereunder shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the Bankruptcy Code or any
comparable provisions of any Applicable Law of any state.”
(
b
)
Section 9(a)(i)
of the
Guaranty is amended and restated as follows:
“(i)
It
is
duly organized, validly existing and in good standing as a corporation or
limited partnership, as applicable, under the laws of the state of its formation
and is duly qualified to do business and is in good standing in all
jurisdictions in which the character of its property, the nature of its business
or the performance of its obligations under any agreement to which it is a
party
or is bound makes such qualification necessary
.”
(
c
)
Section 29
of the
Guaranty is amended and restated as follows:
“29.
Joint
and Several Obligations
.
(a)
At
all
times during which there is more than one (1) Guarantor under the
Guaranty
,
the
liability of each Guarantor shall be joint and several and the joint and several
obligations of each Guarantor under the Repurchase Documents
(a) (i) shall be absolute and unconditional and shall remain in full
force and effect (or be reinstated) until all the Obligations shall have been
paid in full and the expiration of any applicable preference or similar period
pursuant to any bankruptcy, insolvency, reorganization, moratorium or similar
law, or at law or in equity, without any claim having been made before the
expiration of such period asserting an interest in all or any part of any
payment(s) received by the Buyer, and (ii) until such payment has been
made, shall not be discharged, affected, modified or impaired on the happening
from time to time of any event, including, without limitation, any of the
following, whether or not with notice to or the consent of any Seller, any
Guarantor or the Pledgor, (A) the waiver, compromise, settlement, release,
termination or amendment (including, without limitation, any extension or
postponement of the time for payment or performance or renewal or refinancing)
of any or all of the obligations or agreements of any Seller, any Guarantor
or
the Pledgor under the Repurchase Agreement or any Repurchase Document,
(B) the failure to give notice to any Seller, any Guarantor or the Pledgor
of the occurrence of an Event of Default under any of the Repurchase Documents,
(C) the release, substitution or exchange by the Buyer of any or all of the
Purchased Items or the Equity Interests (in each case, whether with or without
consideration) or the acceptance by the Buyer of any additional collateral
or
the availability or claimed availability of any other collateral or source
of
repayment or any nonperfection or other impairment of collateral, (D) the
release of any Person primarily or secondarily liable for all or any part of
the
Obligations, whether by the Buyer or in connection with any voluntary or
involuntary liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors or similar event or proceeding affecting
any or all Sellers, any Guarantors, the Pledgor or any other Person who, or
any
of whose Property, shall at the time in question be obligated in respect of
the
Obligations or any part thereof, or (E) to the extent permitted by
Applicable Law, any other event, occurrence, action or circumstance that would,
in the absence of this
Section 29
,
result
in the release or discharge of any or all Guarantors from the performance or
observance of any obligation, covenant or agreement contained in the Repurchase
Documents; (b) each Guarantor expressly agrees that the Buyer shall not be
required first to initiate any suit or to exhaust its remedies against any
Seller, any Guarantor, the Pledgor or any other Person to become liable, or
against any of the Purchased Items or the Equity Interests, in order to enforce
this Guaranty or the other Repurchase Documents and each Guarantor expressly
agrees that, notwithstanding the occurrence of any of the foregoing, each
Guarantor shall be and remain directly and primarily liable for all sums due
under the Repurchase Agreement or any of the Repurchase Documents, as and to
the
extent limited by this
Guaranty
;
and,
(c) on disposition by the Buyer of any Property encumbered by any Purchased
Items or the Equity Interests, each Guarantor shall be and shall remain jointly
and severally liable for any deficiency, as and to the extent limited by this
Guaranty
.
(b)
Each
Guarantor
hereby
agrees that, to the extent another
Guarantor
shall
have paid more than its proportionate share of any payment made hereunder,
the
Guarantor
shall
be
entitled to seek and receive contribution from and against any other
Guarantor
which
has
not paid its proportionate share of such payment;
provided
however
,
that
the provisions of this
Section 29(b)
shall in
no respect limit the obligations and liabilities of any
Guarantor
to
the
Buyer, and, notwithstanding any payment or payments made by any
Guarantor
(the
“
paying
Guarantor
”)
hereunder or any set-off or application of funds of the paying
Guarantor
by
the
Buyer, the paying
Guarantor
shall
not
be entitled to be subrogated to any of the rights of the Buyer against any
other
Guarantor
or
any
collateral security or guarantee or right of offset held by the Buyer, nor
shall
the paying
Guarantor
seek
or
be entitled to seek any contribution or reimbursement from the other
Guarantor
in
respect of payments made by the paying
Guarantor
hereunder,
until all amounts owing to the Buyer by the
Guarantors
under
the
Repurchase Documents are paid in full. If any amount shall be paid to the paying
Guarantor
on
account of such subrogation rights at any time when all such amounts shall
not
have been paid in full, such amount shall be held by the paying
Guarantor
in
trust
for the Buyer, segregated from other funds of the paying
Guarantor
,
and
shall, forthwith upon receipt by the paying
Guarantor
,
be
turned over to the Buyer in the exact form received by the paying
Guarantor
(duly
indorsed by the paying
Guarantor
to
the
Buyer, if required), to be applied against amounts owing to the Buyer by the
Guarantors
under
the
Repurchase Documents, whether matured or unmatured, in such order as the Buyer
may determine in its discretion.”
Section
4
.
Amendments
to Fee Letter
.
In
connection with the closing of this Second Omnibus Amendment, the Sellers shall
execute the Fee Letter.
Section
5
.
[
Reserved
].
Section
6
.
Miscellaneous
Amendments
.
(
a
)
In
connection with the closing of this Second Omnibus Amendment, the Sellers shall
execute the Amended and Restated Preferred Equity Pledge and Security Agreement
which is attached hereto as
Exhibit C
and is
incorporated herein by reference.
(
b
)
Amendments
to the existing UCC financing statement filed against the Existing Sellers
and
the Pledgor shall also be filed in connection with the closing of this Second
Omnibus Amendment to incorporate the changes reflected herein.
(
c
)
The
term
“Seller,” as used in each of the Repurchase Documents, is hereby amended, in
each case
mutatis
mutandis
,
to
refer to “Sellers” and the term Sellers to refer to (individually and
collectively as the context may require) NRFC WA Holdings, LLC, a Delaware
limited liability company (together with its successors and permitted assigns),
NRFC WA Holdings II, LLC, a Delaware limited liability company (together with
its successors and permitted assigns), NRFC WA Holdings III, LLC, a
Delaware limited liability company (together with its successors and permitted
assigns), NRFC WA Holdings IV, LLC, a Delaware limited liability company
(together with its successors and permitted assigns), NRFC WA Holdings IV,
LLC, a Delaware limited liability company (together with its successors and
permitted assigns), NRFC WA Holdings V, LLC, a Delaware limited liability
company (together with its successors and permitted assigns), NRFC WA
Holdings VI, LLC, a Delaware limited liability company (together with its
successors and permitted assigns), NRFC WA Holdings VII, LLC, a Delaware
limited liability company (together with its successors and permitted assigns),
and NRFC WA Holdings VIII, LLC, a Delaware limited liability company
(together with its successors and permitted assigns), as the Sellers, each
jointly and severally liable under the Repurchase Documents.
(
d
)
The
term
“Guarantor,” as used in each of the Repurchase Documents, is hereby amended, in
each case
mutatis
mutandis
,
to
refer to “Guarantors” and the term Guarantors to refer to (individually and
collectively as the context may require) NorthStar Realty Finance Corp., a
Maryland corporation (together with its successors and permitted assigns) and
NorthStar Realty Finance L.P., a Delaware limited partnership (together with
its
successors and permitted assigns), as the Guarantors, each jointly and severally
liable as Guarantors under the Guaranty.
(
e
)
The
term
“Obligations,” as used in each of the Repurchase Documents, shall include all
Obligations of each Seller, jointly and severally, under the Repurchase
Agreement and under each other Repurchase Document.
Section
7
.
Consent
to Joinder; Related Acknowledgments and Agreements
.
(
a
)
Subject
to the terms of this Second Omnibus Amendment, including, but not limited to,
satisfaction in full of the requirements set forth in
Section 11
of this
Second Omnibus Amendment, the Buyer consents to (i) the addition of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII as additional Sellers, to be jointly and severally liable with
the Existing Sellers under the Repurchase Documents and (ii) the addition
of the Operating Partnership as an additional Guarantor, to be jointly and
severally liable with the Existing Guarantor under the Repurchase Documents
to
which the Guarantors are a party. All parties acknowledge and agree that the
Buyer’s consent hereto shall not be deemed a waiver of the Buyer’s rights to
prohibit or to refuse to consent to future transfers, additions, substitutions,
waivers or other matters under Repurchase Documents.
(
b
)
All
parties to this Second Omnibus Amendment acknowledge, agree and confirm that,
upon execution of this Second Omnibus Amendment, (i) each of NRFC III,
NRFC IV, NRFC V, NRFC VI, NRFC VII and NRFC VIII shall
each be deemed to be a party to, and a “Seller” under, the Repurchase Documents
for all purposes, (ii) the Operating Partnership shall be deemed to be a
party to and a “Guarantor” under the Repurchase Documents for all purposes,
(iii) the obligations and liabilities of each Seller and each Guarantor, as
applicable, under the Repurchase Documents shall be joint and several,
(iv) the Pledge and Security Agreement shall now constitute a pledge of the
Capital Stock of all Sellers, (v) the Guaranty shall now be an obligation
of both Guarantors and the Guaranty shall apply to and cover the Obligations
of
all Sellers, (vi) the Repurchase Documents to which the Sellers are a party
and
the Transactions thereunder shall now be obligations of all Sellers,
(vii) each Seller, each Guarantor, the Pledgor and the Custodian hereby
acknowledges and confirms that the Repurchase Agreement and all other Repurchase
Documents are, and upon each of NRFC III, NRFC IV, NRFC V,
NRFC VI, NRFC VII and NRFC VIII becoming a Seller and the
Operating Partnership becoming a Guarantor, shall continue to be, valid, binding
and enforceable and in full force and effect, and (viii) each of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership shall have all of the rights,
duties, obligations and liabilities of a Seller or Guarantor, as applicable,
under the Repurchase Documents, the same as if each had executed each of the
Repurchase Documents, as a Seller or Guarantor, as applicable, in each case
mutatis
mutandis
.
(
c
)
Each
of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions, conditions,
duties, obligations and liabilities applicable to a Seller or a Guarantor,
as
applicable, and contained in the Repurchase Documents (including all exhibits,
annexes, schedules and attachments thereto), in each case
mutatis
mutandis
,
including, without limitation, (i) all of the representations, warranties
and certifications applicable to a Seller or a Guarantor set forth in the
Repurchase Documents, which representations, warranties and certifications
each
of NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership hereby makes as of the date hereof
(and will make as of each future date required by the Repurchase Documents)
and
hereby certifies that such representations, warranties and certifications are
true and correct in all material respects as of the date of this Second Omnibus
Amendment, (ii) all of the duties, obligations, liabilities and affirmative
and negative covenants applicable to a Seller and/or a Guarantor, as applicable,
set forth in the applicable Repurchase Documents, (iii) the indemnification
provisions contained in the Repurchase Documents applicable to a Seller or
a
Guarantor, as applicable, (iv) the obligation to pay within the time period
specified in the Repurchase Agreement any and all Margin Deficits with respect
to any and all Purchased Assets and all other amounts due under the Repurchase
Documents, and (v) all other terms, provisions, obligations, duties,
agreements and liabilities applicable to a Seller and/or a Guarantor, as
applicable, set forth in the applicable Repurchase Documents.
(
d
)
For
the
avoidance of doubt, (i) each of the Sellers hereby assigns, pledges and
grants a security interest in all of its right, title and interest in, to and
under the Purchased Items in favor of the Buyer (on behalf of the Buyer and
the
Swap Counterparty) to secure, and each of the Sellers agrees to pay, jointly
and
severally, the Obligations as and when due under the Repurchase Documents,
(ii) the Pledgor hereby assigns, pledges and grants a security interest to
the Buyer (on behalf of the Buyer and the Swap Counterparty) in all of its
right, title and interest in, to and under the Pledged Collateral (which now
includes, but is not limited to, the Equity Interests in all Sellers) to secure
payment of the Pledged Obligations, which includes the Obligations of all
Sellers, and (iii) the Guarantors acknowledge and agree that the Guarantee
Obligations and the Guarantee Indebtedness now include, but are not limited
to,
the Obligations and Indebtedness of all Sellers and the Pledgor.
(
e
)
Each
of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership acknowledges and confirms that it
has received a copy of each and every Repurchase Document and the schedules,
annexes, exhibits and attachments thereto.
(
f
)
The
address for notice purposes under the Repurchase Documents for each Seller
and
each Guarantor shall be the address set forth on the signature page of the
applicable Seller or Guarantor, as applicable.
(
g
)
The
Sellers, the Guarantor and the Pledgor acknowledge and agree that the joinder
of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII as Sellers, the joinder of the Operating Partnership as Guarantor
and the amendments set forth in this Second Omnibus Amendment do not and shall
not release, reduce, diminish, impair or adversely affect the obligations of
such parties under the Repurchase Documents, as amended by this Second Omnibus
Amendment.
(
h
)
Each
of
the Sellers, the Guarantors, the Pledgor and the Custodian agrees that, at
any
time and from time to time, upon the written request of the Buyer, it will
execute and deliver such further documents and do such further acts as the
Buyer
may reasonably request in order to carry out the purposes and intent of this
Second Omnibus Amendment.
Section
8
.
Fees
.
In
connection with the closing of this Second Omnibus Amendment, the Sellers shall
pay to the Buyer the upsize fee described in the Fee Letter in immediately
available funds and without and reduction for or an account of any defense,
counterclaim or set-off.
Section
9
.
Repurchase
Documents in Full Force and Effect as Modified
.
Except
as
specifically modified hereby, the Repurchase Documents shall remain in full
force and effect. All references to any Repurchase Document shall be deemed
to
mean each Repurchase Document as modified by this Second Omnibus Amendment.
This
Second Omnibus Amendment shall not constitute a novation of the Repurchase
Documents, but shall constitute a modification thereof. The parties hereto
agree
to be bound by the terms and conditions of the Repurchase Documents, as modified
by this Second Omnibus Amendment, as though such terms and conditions were
set
forth herein.
Section
10
.
Representations
.
Each
of
the Sellers, each of the Guarantors and the Pledgor represents and warrants,
as
of the date of this Second Omnibus Amendment, as follows:
(
a
)
it
is
duly incorporated or organized, validly existing and in good standing under
the
laws of its jurisdiction of organization and each jurisdiction where it conducts
business;
(
b
)
the
execution, delivery and performance by it of this Second Omnibus Amendment
is
within its corporate, company or partnership powers, has been duly authorized
and does not contravene (1) its Governing Documents or its applicable
resolutions, (2) any Applicable Law or (3) any Contractual Obligation,
Indebtedness or Guarantee Obligation;
(
c
)
no
consent, license, permit, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority or other Person is required
in
connection with the execution, delivery, performance, validity or enforceability
by or against it of this Second Omnibus Amendment;
(
d
)
this
Second Omnibus Amendment has been duly executed and delivered by
it;
(
e
)
this
Second Omnibus Amendment, as well as each of the Repurchase Documents as
modified by this Second Omnibus Amendment, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity;
(
f
)
no
Default or Event of Default exists or will exist after giving effect to this
Second Omnibus Amendment; and
(
g
)
each
of
the Repurchase Documents is in full force and effect and no Seller, no Guarantor
or the Pledgor has any defense, offset, counterclaim, abatement, right of
rescission or other claims, legal or equitable, available to any Seller, any
Guarantor, the Pledgor or any other Person with respect to this Second Omnibus
Amendment, the Repurchase Agreement, the Repurchase Documents or any other
instrument, document and/or agreement described herein or therein, as modified
and amended hereby, or with respect to the obligation of the Sellers and the
Guarantors to repay the Obligations and other amounts due under the Repurchase
Documents.
Section
11
.
Conditions
Precedent
.
The
effectiveness of this Second Omnibus Amendment is subject to the following
conditions precedent: (i) delivery to the Buyer of this Second Omnibus
Amendment, the Fee Letter and Preferred Equity Pledge and Security Agreement
duly executed by each of the parties thereto; (ii) delivery to the Buyer
with respect to each NRFC III, NRFC IV, NRFC V, NRFC VI,
NRFC VII, NRFC VIII and the Operating Partnership of the following in
form and substance satisfactory to the Buyer in its reasonable discretion:
Governing Documents, recent good standing certificates, an executed secretary’s
certificate, an executed incumbency certificate, executed resolutions, an
executed Perfection Certificate in the form attached hereto as
Exhibit E
to this
Second Omnibus Amendment (for the new Sellers only), a Power of Attorney in
the
form of
Exhibit F
to this
Second Omnibus Amendment (for the new Sellers only) and such information as
the
Buyer may require to comply with the U. S. Patriot Act and related
Applicable Laws with respect to the new Sellers and the new Guarantor;
(iii) modification of the Collection Account and Securities Account, as
appropriate, to address the interests of all Sellers therein; (iv) delivery
to the Buyer of an Opinion of Counsel with respect to the Sellers, the Pledgor
and the Guarantor and this Second Omnibus Amendment and the Repurchase Documents
as modified by this Second Omnibus Amendment; (v) payment of the fee
referred to in
Section 8
of this
Second Omnibus Amendment; (vi) the filing of UCC financing statement
amendments in the applicable jurisdiction against the Sellers and the Pledgor
and the new Sellers; (vii) the payment of all reasonable legal fees and
expenses of Moore & Van Allen PLLC, as counsel to the Buyer, in the amount
to be set forth on a separate invoice; (viii) an Officer’s Certificate as
provided in the last paragraph of the Fee Letter; and (ix) such other
documents, agreements or certifications as the Buyer may reasonably require.
Section
12
.
Miscellaneous
.
(
a
)
This
Second Omnibus Amendment may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement.
(
b
)
The
descriptive headings of the various sections of this Second Omnibus Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
(
c
)
This
Second Omnibus Amendment may not be amended or otherwise modified, waived or
supplemented except as provided in the Repurchase Agreement.
(
d
)
The
interpretive provisions of
Section 1(b)
of
Annex I
of the
Repurchase Agreement are incorporated herein
mutatis
mutandis
.
(
e
)
This
Second Omnibus Amendment represents the final agreement among the parties and
may not be contradicted by evidence of prior, contemporaneous or subsequent
oral
agreements between the parties. There are no unwritten oral agreements between
the parties.
(
f
)
THIS
SECOND OMNIBUS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS SECOND OMNIBUS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
the
parties have caused this Second Omnibus Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
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THE
SELLERS:
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NRFC WA HOLDINGS, LLC,
a Delaware limited liability company
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By:
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/s/ Daniel Gilbert
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Name:
Daniel
Gilbert
Title:
Executive
Vice President
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Address
for Notices:
NRFC
WA Holdings, LLC
c/o
NorthStar Realty Finance Corp.
527
Madison Avenue
New
York, New York 10022
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Attention:
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Andy Richardson
Richard McCready
Daniel R. Gilbert
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Facsimile No.:
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(212) 208-2651
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(212) 319-4558
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Confirmation No.:
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(212)
319-2618
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(212) 319-2623
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(212) 319-3679
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with a copy to:
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Paul Hastings Janofsky & Walker LLP
75 East 55
th
Street
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Attention:
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Robert J. Grados, Esq.
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Facsimile No.:
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(212) 230-7830
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Confirmation No.:
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(212)
318-6923
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[
SIGNATURES
CONTINUED ON FOLLOWING PAGE
]
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THE
BUYER
:
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WACHOVIA
BANK, NATIONAL ASSOCIATION
,
a
national banking association
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By:
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/s/
Joseph F. Cannon
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Name:
Joseph
F. Cannon
Title:
Vice
President
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Wachovia
Bank, National Association
One
Wachovia Center, Mail Code: NC0166
301
South College Street
Charlotte,
North Carolina 28288
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Attention:
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Marianne Hickman
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Facsimile No.:
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(704) 715-0066
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Confirmation No.:
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(704)
715-7818
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[ADDITIONAL
SIGNATURE
PAGES INTENTIONALLY OMITTED
]
JUNIOR
SUBORDINATED INDENTURE
between
NORTHSTAR
REALTY FINANCE LIMITED PARTNERSHIP,
as
Issuer,
NORTHSTAR
REALTY FINANCE CORP.,
as
Guarantor,
and
WILMINGTON
TRUST COMPANY
as
Trustee
Dated
as
of August 1, 2006
TABLE
OF CONTENTS
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Page
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ARTICLE
I
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Definitions
and Other Provisions of General Application
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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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10
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SECTION
1.3.
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Forms
of Documents Delivered to Trustee
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SECTION
1.4.
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Acts
of Holders
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SECTION
1.5.
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Notices,
Etc.
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SECTION
1.6.
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Notice
to Holders; Waiver
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14
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SECTION
1.7.
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Effect
of Headings and Table of Contents
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14
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SECTION
1.8.
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Successors
and Assigns
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15
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SECTION
1.9.
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Separability
Clause
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15
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SECTION
1.10.
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Benefits
of Indenture
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SECTION
1.11.
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Governing
Law
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15
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SECTION
1.12.
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Submission
to Jurisdiction
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15
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SECTION
1.13.
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Non-Business
Days
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ARTICLE
II
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Security
Forms
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SECTION
2.1.
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Form
of Security
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16
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SECTION
2.2.
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Restricted
Legend
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20
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SECTION
2.3.
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Form
of Trustee’s Certificate of Authentication
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23
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SECTION
2.4.
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Temporary
Securities
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23
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SECTION
2.5.
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Definitive
Securities
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23
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ARTICLE
III
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The
Securities
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SECTION
3.1.
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Payment
of Principal and Interest
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24
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SECTION
3.2.
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Denominations
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26
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SECTION
3.3.
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Execution,
Authentication, Delivery and Dating
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26
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SECTION
3.4.
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Global
Securities
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27
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SECTION
3.5.
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Registration,
Transfer and Exchange Generally
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29
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SECTION
3.6.
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Mutilated,
Destroyed, Lost and Stolen Securities
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30
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SECTION
3.7.
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Persons
Deemed Owners
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31
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SECTION
3.8.
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Cancellation
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31
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SECTION
3.9.
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RESERVED
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31
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SECTION
3.10.
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Right
of Set-Off
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31
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SECTION
3.11.
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Agreed
Tax Treatment
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31
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SECTION
3.12.
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CUSIP
Numbers
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31
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ARTICLE
IV
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Satisfaction
and Discharge
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SECTION
4.1.
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Satisfaction
and Discharge of Indenture
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32
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SECTION
4.2.
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Application
of Trust Money
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33
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ARTICLE
V
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Remedies
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SECTION
5.1.
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Events
of Default
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33
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SECTION
5.2.
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Acceleration
of Maturity; Rescission and Annulment
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34
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SECTION
5.3.
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Collection
of Indebtedness and Suits for Enforcement by Trustee
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36
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SECTION
5.4.
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Trustee
May File Proofs of Claim
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36
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SECTION
5.5.
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Trustee
May Enforce Claim Without Possession of Securities
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37
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SECTION
5.6.
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Application
of Money Collected
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SECTION
5.7.
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Limitation
on Suits
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37
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SECTION
5.8.
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Unconditional
Right of Holders to Receive Principal, Premium
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and
Interest; Direct Action by Holders of Preferred Securities
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38
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SECTION
5.9.
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Restoration
of Rights and Remedies
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38
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SECTION
5.10.
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Rights
and Remedies Cumulative
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39
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SECTION
5.11.
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Delay
or Omission Not Waiver
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39
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SECTION
5.12.
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Control
by Holders
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39
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SECTION
5.13.
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Waiver
of Past Defaults
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39
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SECTION
5.14.
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Undertaking
for Costs
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40
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SECTION
5.15.
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Waiver
of Usury, Stay or Extension Laws
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40
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ARTICLE
VI
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The
Trustee
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SECTION
6.1.
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Corporate
Trustee Required
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41
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SECTION
6.2.
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Certain
Duties and Responsibilities
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41
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SECTION
6.3.
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Notice
of Defaults
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42
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SECTION
6.4.
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Certain
Rights of Trustee
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43
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SECTION
6.5.
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May
Hold Securities
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45
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SECTION
6.6.
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Compensation;
Reimbursement; Indemnity
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45
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SECTION
6.7.
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Resignation
and Removal; Appointment of Successor
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46
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SECTION
6.8.
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Acceptance
of Appointment by Successor
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47
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SECTION
6.9.
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Merger,
Conversion, Consolidation or Succession to Business
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SECTION
6.10.
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Not
Responsible for Recitals or Issuance of Securities
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47
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SECTION
6.11.
|
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Appointment
of Authenticating Agent
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48
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ARTICLE
VII
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Holders'
Lists and Reports by Trustee and Company
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SECTION
7.1.
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Company
to Furnish Trustee Names and Addresses of Holders
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49
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SECTION
7.2.
|
|
Preservation
of Information, Communications to Holders
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49
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SECTION
7.3.
|
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Reports
by Company and Trustee
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50
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ARTICLE
VIII
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Consolidation,
Merger, Conveyance, Transfer or Lease
|
|
|
|
|
|
|
|
|
|
SECTION
8.1.
|
|
Company
and Guarantor May Consolidate, Etc.,
|
|
|
|
|
|
Only
on Certain Terms
|
|
|
|
SECTION
8.2.
|
|
Successor
Company or Guarantor Substituted
|
|
52
|
|
|
|
|
|
|
|
|
|
ARTICLE
IX
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental
Indentures
|
|
|
|
|
|
|
|
|
|
SECTION
9.1.
|
|
Supplemental
Indentures without Consent of Holders
|
|
53
|
|
SECTION
9.2.
|
|
Supplemental
Indentures with Consent of Holders
|
|
53
|
|
SECTION
9.3.
|
|
Execution
of Supplemental Indentures
|
|
54
|
|
SECTION
9.4.
|
|
Effect
of Supplemental Indentures
|
|
55
|
|
SECTION
9.5.
|
|
Reference
in Securities to Supplemental Indentures
|
|
55
|
|
|
|
|
|
|
|
|
|
ARTICLE
X
|
|
|
|
|
|
|
|
|
|
|
|
Covenants
|
|
|
|
|
|
|
|
|
|
SECTION
10.1.
|
|
Payment
of Principal, Premium and Interest
|
|
55
|
|
SECTION
10.2.
|
|
Money
for Security Payments to be Held in Trust
|
|
55
|
|
SECTION
10.3.
|
|
Statement
as to Compliance
|
|
56
|
|
SECTION
10.4.
|
|
Calculation
Agent
|
|
57
|
|
SECTION
10.5.
|
|
Additional
Tax Sums
|
|
57
|
|
SECTION
10.6.
|
|
Additional
Covenants
|
|
58
|
|
SECTION
10.7.
|
|
Waiver
of Covenants
|
|
59
|
|
SECTION
10.8.
|
|
Treatment
of Securities
|
|
59
|
|
|
|
|
|
|
|
|
|
ARTICLE
XI
|
|
|
|
|
|
|
|
|
|
|
|
Redemption
of Securities
|
|
|
|
|
|
|
|
|
|
SECTION
11.1.
|
|
Optional
Redemption
|
|
60
|
|
SECTION
11.2.
|
|
Special
Event Redemption
|
|
60
|
|
SECTION
11.3.
|
|
Election
to Redeem; Notice to Trustee
|
|
60
|
|
SECTION
11.4.
|
|
Selection
of Securities to be Redeemed
|
|
60
|
|
SECTION
11.5.
|
|
Notice
of Redemption
|
|
61
|
|
SECTION
11.6.
|
|
Deposit
of Redemption Price
|
|
62
|
|
SECTION
11.7.
|
|
Payment
of Securities Called for Redemption
|
|
62
|
|
|
|
|
|
|
|
|
|
ARTICLE
XII
|
|
|
|
|
|
|
|
|
|
|
|
Subordination
of Securities
|
|
|
|
|
|
|
|
|
|
SECTION
12.1.
|
|
Securities
Subordinate to Senior Debt of the Company
|
|
62
|
|
SECTION
12.2.
|
|
No
Payment When Senior Debt of the Company in Default;
|
|
|
|
|
|
Payment
Over of Proceeds Upon Dissolution, Etc.
|
|
63
|
|
SECTION
12.3.
|
|
Payment
Permitted If No Default
|
|
64
|
|
SECTION
12.4.
|
|
Subrogation
to Rights of Holders of Senior Debt of the Company
|
|
64
|
|
SECTION
12.5.
|
|
Provisions
Solely to Define Relative Rights
|
|
65
|
|
SECTION
12.6.
|
|
Trustee
to Effectuate Subordination
|
|
65
|
|
SECTION
12.7.
|
|
No
Waiver of Subordination Provisions
|
|
65
|
|
SECTION
12.8.
|
|
Notice
to Trustee
|
|
66
|
|
SECTION
12.9.
|
|
Reliance
on Judicial Order or Certificate of Liquidating Agent
|
|
67
|
|
SECTION
12.10.
|
|
Trustee
Not Fiduciary for Holders of Senior Debt of the Company
|
|
67
|
|
SECTION
12.11.
|
|
Rights
of Trustee as Holder of Senior Debt of the Company;
|
|
|
|
|
|
Preservation
of Trustee’s Rights
|
|
67
|
|
SECTION
12.12.
|
|
Article
Applicable to Paying Agents
|
|
67
|
|
|
|
|
|
|
|
|
|
ARTICLE
XIII
|
|
|
|
|
|
|
|
|
|
|
|
Guarantee
|
|
|
|
|
|
|
|
|
|
SECTION
13.1.
|
|
The
Guarantee
|
|
68
|
|
SECTION
13.2.
|
|
Guarantee
Unconditional, etc.
|
|
68
|
|
SECTION
13.3.
|
|
Reinstatement
|
|
69
|
|
SECTION
13.4.
|
|
Subrogation
|
|
69
|
|
|
|
|
|
|
|
|
|
ARTICLE
XIV
|
|
|
|
|
|
|
|
|
|
|
|
Subordination
of Guarantee
|
|
|
|
|
|
|
|
|
|
SECTION
14.1.
|
|
Securities
Subordinate to Senior Debt of the Guarantor
|
|
69
|
|
SECTION
14.2.
|
|
No
Payment When Senior Debt of the Guarantor in Default;
|
|
|
|
|
|
Payment
Over of Proceeds Upon Dissolution, Etc.
|
|
69
|
|
SECTION
14.3.
|
|
Payment
Permitted If No Default
|
|
|
|
SECTION
14.4.
|
|
Subrogation
to Rights of Holders of Senior Debt of the Guarantor
|
|
71
|
|
SECTION
14.5.
|
|
Provisions
Solely to Define Relative Rights
|
|
72
|
|
SECTION
14.6.
|
|
Trustee
to Effectuate Subordination
|
|
72
|
|
SECTION
14.7.
|
|
No
Waiver of Subordination Provisions
|
|
72
|
|
SECTION
14.8.
|
|
Notice
to Trustee
|
|
73
|
|
SECTION
14.9.
|
|
Reliance
on Judicial Order or Certificate of Liquidating Agent
|
|
73
|
|
SECTION
14.10.
|
|
Trustee
Not Fiduciary for Holders of Senior Debt of the Guarantor
|
|
74
|
|
SECTION
14.11.
|
|
Rights
of Trustee as Holder of Senior Debt of the Guarantor;
Preservation
of Trustee’s Rights
|
|
74
|
|
SECTION
14.12.
|
|
Article
Applicable to Paying Agents
|
|
74
|
SCHEDULES
|
Schedule
A
|
|
Determination
of LIBOR
|
|
|
|
|
|
Exhibit
A
|
|
Form
of Officer’s Financial Certificate
|
|
Exhibit
B
|
|
Form
of Officer’s Certificate pursuant to Section
10.3
|
J
UNIOR
S
UBORDINATED
I
NDENTURE
,
dated as of August 1, 2006, between NorthStar Realty Finance Limited
Partnership, a Delaware limited partnership (the “
Company
”),
NorthStar Realty Finance Corp., a Maryland corporation (the “
Guarantor
”),
and
Wilmington Trust Company, a Delaware banking corporation, as Trustee (in
such
capacity, the “
Trustee
”).
R
ECITALS
O
F
T
HE
C
OMPANY
W
HEREAS
,
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
NorthStar Realty Finance Trust V, 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 the Guarantor has duly authorized
the
issuance of its guarantee of the Securities (the “
Guarantee
”)
under
this Indenture; and
W
HEREAS
,
all
things necessary to make this Indenture a valid agreement of the Company and
the
Guarantor, in accordance with its terms, have been done.
Now,
therefore, this Indenture Witnesseth:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
I
Definitions
and Other Provisions of General Application
SECTION
1.1.
Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms
defined in this
Article
I
have the
meanings assigned to them in this
Article
I
;
(b)
the
words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(c)
all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with GAAP;
(d)
unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this
Indenture;
(e)
the
words
“hereby”, “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or
other subdivision;
(f)
a
reference to the singular includes the plural and vice versa; and
(g)
the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“
Act
”
when
used with respect to any Holder, has the meaning specified in
Section
1.4
.
“
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).
“
Administrative
Trustee
”
means,
with respect to the Trust, a 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.
“
Affiliate
”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control,” when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“
Applicable
Depositary Procedures
”
means,
with respect to any transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures of the Depositary for
such
Security, in each case to the extent applicable to such transaction and as
in
effect from time to time.
“
Authenticating
Agent
”
means
any Person authorized by the Trustee pursuant to
Section
6.11
to act
on behalf of the Trustee to authenticate the Securities.
“
Board
of Directors
”
means
the board of directors of the Company or the Guarantor, as the context requires,
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 or the Guarantor, as the context requires, 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
.
“
Code
”
means
the Internal Revenue Code of 1986, as amended.
“
Commission
”
means
the Securities and Exchange Commission.
“
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 Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
“
Company
”
shall
mean such successor Person.
“
Company
Request
”
and
“
Company
Order
”
mean,
respectively, the written request or order signed in the name of the Company
by
its Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its Chief Executive Officer, its President, its Chief Financial
Officer, its Treasurer, its Secretary, a Vice President, an Assistant Treasurer
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 Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Capital
Markets.
“
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
.
“
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.
“
EDGAR”
means
the
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
“
Equity
Interests
”
means
any of (a) the partnership interests (general or limited) in a partnership,
(b)
the membership interests in a limited liability company or (c) the shares or
stock interests (both common stock and preferred stock) in a
corporation.
“
Event
of Default
”
has
the
meaning specified in
Section
5.1
.
“
Exchange
Act
”
means
the Securities Exchange Act of 1934 or any statute successor thereto, in each
case as amended from time to time.
“
Expiration
Date
”
has
the
meaning specified in
Section
1.4
.
“
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.
“
Guarantee
”
has
the
meaning specified in the first recital of this Indenture.
“
Guarantor
”
means
the Person named as the “
Guarantor
”
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 “
Guarantor
”
shall
mean such successor corporation.
“
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
th
,
June
30
th
,
September 30
th
and
December 30
th
of each
year, commencing on September 30, 2006, 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(d)
.
“
Officer’s
Certificate
”
means
a
certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer, the Secretary, a Vice President, an Assistant Treasurer or an
Assistant Secretary, of the Company or the Guarantor, as applicable, and
delivered to the Trustee.
“
Opinion
of Counsel
”
means
a
written opinion of counsel, who may be counsel for or an employee of the Company
or the Guarantor or any Affiliate of the Company or the Guarantor.
“
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 or the Guarantor) 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, the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor 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,
the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor 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, company, 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
.
“
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 Purchase Agreement, dated August 1, 2006, among the Company, the Guarantor,
the Trust and the Purchaser.
“
Purchaser
”
means
TWE, Ltd., as purchaser of the Preferred Securities pursuant to the Purchase
Agreement.
“
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
price at which such Security or portion thereof is to be redeemed as fixed
by or
pursuant to this Indenture.
“
Reference
Banks
”
has
the
meaning specified in
Schedule
A
.
“
Regular
Record Date
”
for
the
interest payable 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,
with respect to the Trustee, any Senior Vice President, any Vice President,
any
Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any Trust Officer or Assistant Trust Officer, or any
other officer in the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer of the Trustee
to whom such matter is referred because of that officer’s knowledge of and
familiarity with the particular subject.
“
Rights
Plan
”
means
a
plan of the Company or the Guarantor providing for the issuance by the Company
or the Guarantor to all holders of its Equity Interests of rights entitling
the
holders thereof to subscribe for or purchase Equity Interests of the Company
or
the Guarantor, as applicable, which rights (i) are deemed to be transferred
with
such Equity Interests and (ii) are also issued in respect of future issuances
of
such Equity Interests, in each case until the occurrence of a specified event
or
events.
“
Securities
”
or
“
Security
”
means
any debt securities or debt security, as the case may be, authenticated and
delivered under this Indenture.
“
Securities
Act
”
means
the Securities Act of 1933 or any successor statute thereto, in each case as
amended from time to time.
“
Securities
Register
”
and
“
Securities
Registrar
”
have
the respective meanings specified in
Section
3.5
.
“
Senior
Credit Facility
”
means
the Master Loan, Guarantee and Security Agreement, dated as of September 28,
2005, among the Company, NorthStar Realty Finance Corp., NS Advisors LLC, as
Guarantor and Collateral Manager, the entities listed on the signature pages
thereof, and Bank of America, N.A., as in effect on the date hereof and as
such
agreement may be amended, extended, refinanced or replaced from time to
time.
“
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, or the Guarantor, as the context requires, whether or not such
claim for post-petition interest is allowed in such proceeding) all Debt of
the
Company, or the Guarantor, as the context requires, (including, without
limitation, the Senior Credit Facility) 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;
provided,
however,
that
Senior Debt shall not include any other debt securities, and guarantees in
respect of such debt securities, issued to any trust other than the Trust (or
a
trustee of such trust), partnership or other entity affiliated with the Company
or the Guarantor that is a financing vehicle of the Company or the Guarantor
(a
“financing entity”), in connection with the issuance by such financing entity of
equity securities or other securities that rank pari passu with or junior in
right of payment to the Securities, including, without limitation, (i) the
debt
securities of the Company issued under the Indenture, dated April 12, 2005,
between the Company and JPMorgan Chase Bank, National Association, as trustee,
(ii) the debt securities of the Company issued under the Indenture, dated May
25, 2005, between the Company and JPMorgan Chase Bank, National Association,
as
trustee, (iii) the debt securities of the Company issued under the Indenture,
dated November 22, 2005, between the Company and JPMorgan Chase Bank, National
Association, as trustee, and (iv) the debt securities of the Company issued
under the Indenture, dated March 10, 2006, between the Company and Wilmington
Trust Company, as trustee.
“
Special
Event
”
means
the occurrence of an Investment Company Event or a Tax Event.
“
Special
Event Redemption Price
”
has
the
meaning specified in
Section
11.2
.
“
Special
Record Date
”
for
the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant
to
Section
3.1
.
“
Stated
Maturity
”
means
September 30, 2036.
“
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 Guarantor, 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.
SECTION
1.2.
Compliance
Certificate and Opinions.
(a)
Upon
any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor
shall, if requested by the Trustee, furnish to the Trustee an Officer’s
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, except that, in the
case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be
furnished.
(b)
Every
certificate delivered to the Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificate provided
pursuant to
Section
10.3
)
shall
include:
(i)
a
statement by each individual signing such certificate or opinion that such
individual has read such covenant or condition and the definitions herein
relating thereto;
(ii)
a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions of such individual contained in such
certificate or opinion are based;
(iii)
a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv)
a
statement as to whether, in the opinion of such individual, such condition
or
covenant has been complied with.
SECTION
1.3.
Forms
of Documents Delivered to Trustee.
(a)
In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b)
Any
certificate or opinion of an officer of the Company or the Guarantor 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 or the Guarantor
stating that the information with respect to such factual matters is in the
possession of the Company or the Guarantor, unless such counsel knows, or after
reasonable inquiry should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c)
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(d)
Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officer’s
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.
SECTION
1.4.
Acts
of Holders.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given to or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent thereof duly appointed
in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments (including any appointment
of an agent) is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company or the Guarantor. 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
or the Guarantor, 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, the Company or the
Guarantor 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 below) 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 and eightieth (180
th
)
day
after the applicable record date.
SECTION
1.5
.
Notices,
Etc.
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, the Company or the
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office,
(b)
the
Company or the Guarantor 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 c/o
NorthStar Realty Finance Corp., 527 Madison Avenue, New York, New York 10022
Attn: Chief Financial Officer, or at any other address previously furnished
in
writing to the Trustee by the Company, or to the Guarantor addressed to it
at
527 Madison Avenue, New York, New York 10022 Attn: Chief Financial Officer,
or
at any other address previously furnished in writing to the Trustee by the
Guarantor, or
(c)
the
Purchaser by the Trustee, the Company, the Guarantor, any Holder or any holder
or beneficial owner of the Preferred Securities, shall be sufficient for every
purpose hereunder if in writing and mailed first-class postage prepaid to the
Purchaser at c/o Maples Finance Limited, P.O. Box 1093 GT, Queensgate House,
South Church Street, George Town, Grand Cayman, Cayman Islands, Attention:
The
Directors, or any other address previously furnis
hed
by
the
Purchaser.
SECTION
1.6.
Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Holder affected by such event
to the address of such Holder as it appears in the Securities Register, not
later than the latest date, 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.
SECTION
1.7.
Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.
SECTION
1.8.
Successors
and Assigns.
This
Indenture shall be binding upon and shall inure to the benefit of any successor
to the Company, the Guarantor and the Trustee, including any successor by
operation of law. Except in connection with a transaction involving the Company
that is permitted under
Article
VIII
and
pursuant to which the assignee agrees in writing to perform the Company’s
obligations hereunder, the Company shall not assign its obligations
hereunder.
SECTION
1.9.
Separability
Clause.
If
any
provision in this Indenture or in the Securities shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and there
shall
be deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
SECTION
1.10.
Benefits
of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt, the Holders of the Securities 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.
SECTION
1.11.
Governing
Law.
This
Indenture and the rights and obligations of each of the Holders, the Company,
the Guarantor and the Trustee shall be construed and enforced in accordance
with
and governed by the laws of the State of New York without reference to its
conflict of laws provisions (other than Section 5-1401 of the General
Obligations Law).
SECTION
1.12.
Submission
to Jurisdiction.
ANY
LEGAL
ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF
THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY
ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.
SECTION
1.13.
Non-Business
Days.
If
any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest, premium, if any, or principal
or other amounts in respect of such Security shall not be made on such date,
but
shall be made on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, until such next succeeding Business Day) except that, if such
Business Day falls in the next succeeding calendar year, such payment shall
be
made on the immediately preceding 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.
ARTICLE
II
Security
Forms
SECTION
2.1.
Form
of Security.
Any
Security issued hereunder shall be in substantially the following
form:
NorthStar
Realty Finance Limited Partnership
Junior
Subordinated Note due 2036
|
No. _____________
|
$__________
|
NorthStar
Realty Finance Limited Partnership, a limited partnership organized and existing
under the laws of Delaware (hereinafter called the “
Company
,”
which
term includes any successor Person under the Indenture hereinafter referred
to),
for value received, hereby promises to pay to _______________ (the “Holder”), or
registered assigns, the principal sum of $__________ Dollars [
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 September 30, 2036. The Company further promises to pay interest
on said principal sum from August 1, 2006, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
in
arrears on March 30
th
,
June
30
th
,
September 30
th
and
December 30
th
of each
year, commencing on September 30, 2006, 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
variable rate per annum, reset quarterly, equal to LIBOR plus 2.70%, 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
,
that
any overdue principal, premium, if any, or Additional Tax Sums and any overdue
installment of interest shall bear Additional Interest (to the extent that
the
payment of such interest shall be legally enforceable) at a variable rate per
annum, reset quarterly, equal to LIBOR plus 2.70%, 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 for any interest period 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. 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 or automated quotation system on which the Securities may be listed,
traded or quoted and upon such notice as may be required by such exchange or
automated quotation system, all as more fully provided in the
Indenture.
Payment
of principal of, premium, if any, and interest on this Security shall be made
in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payments of principal,
premium, if any, and interest due at the Maturity of this Security shall be
made
at the office or agency of the Company maintained for that purpose in 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 wire 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.
This
Security shall be entitled to the benefit of the guarantee of NorthStar Realty
Finance Corp., the “
Guarantor
,”
which
term includes any successor permitted under the Indenture) as specified in
the
Indenture (the “
Guarantee
”).
The
obligations of the Guarantor under the Guarantee are, to the extent provided
in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Debt of the Guarantor. 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 such Holder’s behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination of the Guarantee so provided and (c) appoints the Trustee such
holder’s attorney-in-fact for any and all such purposes. Each Holder of this
Security, by such Holder’s acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions relating to the Guarantee contained
herein and in the Indenture by each holder of Senior Debt of the Guarantor,
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.
This
Security is one of a duly authorized issue of securities of the Company (the
“
Securities
”)
issued
under the Junior Subordinated Indenture, dated as of August 1, 2006 (the
“
Indenture
”),
between the Company, Guarantor and Wilmington Trust Company, as Trustee (in
such
capacity, the “
Trustee
,”
which
term includes any successor trustee under the Indenture), to which Indenture
and
all indentures supplemental thereto reference is hereby made for a statement
of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Guarantor, the Trustee, the holders of Senior Debt and
the
Holders of the Securities, and of the terms upon which the Securities are,
and
are to be, authenticated and delivered.
All
terms
used in this Security that are defined in the Indenture or in the Amended and
Restated Trust Agreement, dated as of August 1, 2006 (as modified, amended
or
supplemented from time to time, the “
Trust
Agreement
”),
relating to NorthStar Realty Finance Trust V (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 September 30, 2011 and subject to the terms and conditions
of
Article
XI
of the
Indenture, redeem this Security in whole at any time or in part from time to
time at a Redemption Price equal to one hundred percent (100%) of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, to but excluding the date fixed
for
redemption.
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 the Special Event Redemption Price.
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,
the
Guarantor 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, the Guarantor 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
or
the Guarantor 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 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 Guarantor, the Trustee and any agent of the Company, the Guarantor
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 Guarantor, 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 duly executed this certificate this ____ day
of
____________, 2006.
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NorthStar
Realty Finance Limited Partnership
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By:
NorthStar Realty Finance Corp., its
General
Partner
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By:
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Name:
Title:
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SECTION
2.2.
Restricted
Legend.
(a)
Any
Security issued hereunder shall bear a legend in substantially the following
form:
“[
IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH SECURITIES, AND ANY INTEREST THEREIN,
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A UNDER THE SECURITIES ACT.
THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR
(III)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)
(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER
OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF
(III), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION OF COUNSEL
ADDRESSING COMPLIANCE WITH THE U.S. SECURITIES LAWS, AND OTHER INFORMATION
SATISFACTORY TO IT 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
PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“
ERISA
”),
OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “
CODE
”)
(EACH
A “
PLAN
”),
OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER
OR
HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT
OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY,
OR
ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION
4975
OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED
BY
ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN OR OTHER PLAN TO WHICH TITLE I OF ERISA OR SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE “PLAN ASSETS” OF
ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTIVE RELIEF IS
NOT
AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
(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,
at the written direction of the Company, a Security that does not bear the
legend.
SECTION
2.3.
Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificates of authentication shall be in substantially the following
form:
This
represents Securities referred to in the within-mentioned
Indenture.
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Dated:
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WILMINGTON
TRUST COMPANY
,
not in its individual capacity but solely as Trustee
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By:
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Authorized
Officer
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SECTION
2.4.
Temporary
Securities.
(a)
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive Securities
in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may
determine, as evidenced by their execution of such Securities.
(b)
If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of
the Company designated for that purpose without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of any authorized denominations
having the same Original Issue Date and Stated Maturity and having the same
terms as such temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture
as
definitive Securities.
SECTION
2.5.
Definitive
Securities.
The
Securities issued on the Original Issue Date shall be in definitive form. The
definitive Securities shall be printed, lithographed or engraved, or produced
by
any combination of these methods, if required by any securities exchange on
which the Securities may be listed, on a steel engraved border or steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined
by
the officers executing such Securities, as evidenced by their execution of
such
Securities.
ARTICLE
III
The
Securities
SECTION
3.1.
Payment
of Principal and Interest.
(a)
The
unpaid principal amount of the Securities shall bear interest at a variable
rate
per annum, reset quarterly, equal to LIBOR plus 2.70% 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 (to
the
extent payment of such interest would be legally enforceable) at a variable
rate
per annum, reset quarterly, equal to LIBOR plus 2.70%, 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 or automated
quotation system on which the Securities may be listed, traded or quoted and,
upon such notice as may be required by such exchange or automated quotation
system (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(d)
Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates. The amount of interest payable for any
interest period 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 the 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 the 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.
SECTION
3.2.
Denominations.
The
Securities shall be in registered form without coupons and shall be issuable
in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof.
SECTION
3.3.
Execution,
Authentication, Delivery and Dating.
(a)
At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities in an aggregate principal amount (including
all then Outstanding Securities) not in excess of $30,100,000 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 valid
and
legally binding obligations of the Company, 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; and (3) the Securities are not required to be registered
under the Securities 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 officers, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation
as
provided in
Section
3.8
,
for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
(d)
Each
Security shall be dated the date of its authentication.
SECTION
3.4.
Global
Securities.
(a)
Upon
the
election of the Holder after the Original Issue Date, which election need not
be
in writing, the Securities owned by such Holder shall be issued in the form
of
one or more Global Securities registered in the name of the Depositary or its
nominee. Each Global Security issued under this Indenture shall be registered
in
the name of the Depositary designated by the Company for such Global Security
or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b)
Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged
in
whole or in part for registered Securities, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other than
the
Depositary for such Global Security or a nominee thereof unless (i) such
Depositary advises the Trustee and the Company in writing that such Depositary
is no longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Security, and no qualified successor
is
appointed by the Company within ninety (90) days of receipt by the Company
of
such notice, (ii) such Depositary ceases to be a clearing agency registered
under the Exchange Act and no successor is appointed by the Company within
ninety (90) days after obtaining knowledge of such event, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv) an
Event of Default shall have occurred and be continuing. Upon the occurrence
of
any event specified in clause (i), (ii), (iii) or (iv) above, the Trustee shall
notify the Depositary and instruct the Depositary to notify all owners of
beneficial interests in such Global Security of the occurrence of such event
and
of the availability of Securities to such owners of beneficial interests
requesting the same. 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
the portion thereof to be so exchanged or canceled, or equal to 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
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
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee as the owner of such Global Security for all purposes whatsoever. None
of the Company, the Guarantor, the Trustee nor any agent of the Company, the
Guarantor 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
Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by a Depositary or impair, as between a Depositary and such holders
of
beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary (or its nominee) as Holder of any
Security.
SECTION
3.5.
Registration,
Transfer and Exchange Generally.
(a)
The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
“
Securities
Register
”)
in
which the registrar and transfer agent with respect to the Securities (the
“
Securities
Registrar
”),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Securities and of transfers and exchanges of Securities.
The
Trustee shall at all times also be the Securities Registrar. The provisions
of
Article
VI
shall
apply to the Trustee in its role as Securities Registrar.
(b)
Subject
to compliance with Section 2.2(b), upon surrender for registration of transfer
of any Security at the offices or agencies of the Company designated for that
purpose the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations of like tenor and aggregate
principal amount.
(c)
At
the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute,
and
upon receipt thereof 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
(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.
SECTION
3.6.
Mutilated,
Destroyed, Lost and Stolen Securities.
(a)
If
any
mutilated Security is surrendered to the Trustee together with such security
or
indemnity as may be required by the Company or the Trustee to save each of
them
harmless, the Company shall execute and upon receipt thereof 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 Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a
bona
fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and aggregate principal amount as such
destroyed, lost or stolen Security, and bearing a number not contemporaneously
outstanding.
(c)
If
any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing
a
new Security, pay such Security.
(d)
Upon
the
issuance of any new Security under this
Section
3.6
,
the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
(e)
Every
new
Security issued pursuant to this
Section
3.6
in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued
hereunder.
(f)
The
provisions of this
Section
3.6
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION
3.7.
Persons
Deemed Owners.
The
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee shall treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of and any interest on such Security and for all other purposes whatsoever,
and
neither the Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION
3.8.
Cancellation.
All
Securities surrendered for payment, redemption, transfer or exchange shall,
if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Securities surrendered directly to the Trustee
for
any such purpose shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any
Securities canceled as provided in this
Section
3.8
,
except
as expressly permitted by this Indenture. All canceled Securities shall be
disposed of by the Trustee in accordance with its customary practices and the
Trustee shall deliver to the Company a certificate of such
disposition.
SECTION
3.9.
RESERVED.
SECTION
3.10.
RESERVED.
SECTION
3.11.
Agreed
Tax Treatment.
Each
Security issued hereunder shall provide that the Company and, by its acceptance
or acquisition of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a direct or indirect beneficial interest in, such
Security, intend and agree to treat such Security as indebtedness of the Company
for 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 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.
SECTION
3.12.
CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
and other similar or related materials as a convenience to Holders;
provided
,
that
any such notice or other materials may state that no representation is made
as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other materials and that reliance
may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission
of
such numbers.
ARTICLE
IV
Satisfaction
and Discharge
SECTION
4.1.
Satisfaction
and Discharge of Indenture.
This
Indenture shall, upon Company Request, cease to be of further effect (except
as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for and as otherwise provided in this
Section
4.1
)
and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
(a)
either
(i)
all
Securities theretofore authenticated and delivered (other than (A) Securities
that have been mutilated, destroyed, lost or stolen and that have been replaced
or paid as provided in
Section
3.6
and (B)
Securities for whose payment money has theretofore been deposited in trust
or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust as provided in Section 10.2) have been delivered
to the Trustee for cancellation; or
(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, if any, 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 Officer’s Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under
Section
6.6
,
the
obligations of the Company to any Authenticating Agent under
Section
6.11
and, if
money shall have been deposited with the Trustee pursuant to subclause (a)(ii)
of this
Section
4.1
,
the
obligations of the Trustee under Section 4.2 and
Section
10.2(e)
shall
survive.
SECTION
4.2.
Application
of Trust Money.
Subject
to the provisions of
Section
10.2(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, if any, 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
.
ARTICLE
V
Remedies
SECTION
5.1.
Events
of Default.
“
Event
of Default
”
means,
wherever used herein with respect to the Securities, any one of the following
events (whatever the reason for such Event of Default and whether it shall
be
voluntary or involuntary or be effected by operation of law or pursuant to
any
judgment, decree or order of any court or any order, rule or regulation of
any
administrative or governmental body):
(a)
default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance
of
such default for a period of thirty (30) days; or
(b)
default
in the payment of the principal of or any premium, if any, on any Security
at
its Maturity; or
(c)
default
in the performance, or breach, of any covenant or warranty of the Company or
the
Guarantor in this Indenture and continuance of such default or breach for a
period of thirty (30) days after there has been given, by registered or
certified mail, to the Company and the Guarantor by the Trustee or to the
Company, the Guarantor and the Trustee by the Holders of at least twenty five
percent (25%) in aggregate principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a “Notice of Default” hereunder; or
(d)
the
entry
by a court having jurisdiction in the premises of a decree or order adjudging
the Company or the Guarantor a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or the Guarantor under any applicable Federal
or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or the Guarantor or of any substantial part
of
its property, or ordering the winding up or liquidation of its affairs, and
the
continuance of any such decree or order for relief or any such other decree
or
order unstayed and in effect for a period of sixty (60) consecutive days;
or
(e)
the
institution by the Company or the Guarantor of proceedings to be adjudicated
a
bankrupt or insolvent, or the consent by the Company or the Guarantor to the
institution of bankruptcy or insolvency proceedings against it, or the filing
by
the Company or the Guarantor of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property
or
the Guarantor or of any substantial part of its property, or the making by
the
Company or the Guarantor of an assignment for the benefit of creditors, or
the
admission by the Company or the Guarantor in writing of its inability to pay
its
debts generally as they become due and its willingness to be adjudicated a
bankrupt or insolvent, or the taking of corporate action by the Company or
the
Guarantor in furtherance of any such action; 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;
or
(g)
the Guarantee shall cease to be in full force and effect or the Guarantor
shall, in writing to the Trustee, to a Holder or a holder of the Preferred
Securities or to any governmental agency or regulatory authority, deny or
disaffirm its obligations under the Guarantee.
SECTION
5.2.
Acceleration
of Maturity; Rescission and Annulment.
(a)
If
an
Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than twenty five percent (25%) in 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 the Guarantor (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 Guarantor 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 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, the Guarantor and the Trustee, may rescind
and annul such declaration and its consequences if:
(i)
the
Company or the Guarantor has paid or deposited with the Trustee a sum sufficient
to pay:
|
(A)
|
all
overdue installments of interest on all
Securities,
|
|
(B)
|
any
accrued Additional Interest on all
Securities,
|
|
(C)
|
the
principal of and any premium, if any, 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, the Guarantor 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.
SECTION
5.3.
Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a)
Each
of
the Company and the Guarantor 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 and the Guarantor 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 or the Guarantor 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, the Guarantor 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, the Guarantor or any other obligor
upon
the Securities, wherever situated.
(c)
If
an
Event of Default with respect to Securities occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and
the
rights of the Holders of Securities by such appropriate judicial proceedings
as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION
5.4.
Trustee
May File Proofs of Claim.
In
case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative
to
the Company or the Guarantor (or any other obligor upon the Securities), its
property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized hereunder in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable
on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the
making of such payments directly to the Holders, to first pay to the Trustee
any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts owing
the
Trustee, any predecessor Trustee and other Persons under
Section
6.6
.
SECTION
5.5.
Trustee
May Enforce Claim Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any
such proceeding instituted by the Trustee shall be brought in its own name
as
trustee of an express trust, and any recovery of judgment shall, subject to
Article
XII
and
after provision for the payment of all the amounts owing the Trustee, any
predecessor Trustee and other Persons under
Section
6.6
,
be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION
5.6.
Application
of Money Collected.
Any
money
or property collected or to be applied by the Trustee with respect to the
Securities pursuant to this
Article
V
shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money or property on account of principal
or
any premium or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially
paid
and upon surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under
Section
6.6
;
SECOND:
To the payment of all Senior Debt of the Company if and to the extent required
by
Article
XII
or by
Article
XIV
.
THIRD:
Subject to
Article
XII
and
Article
XIV
,
to the
payment of the amounts then due and unpaid upon the Securities for principal
and
any premium and interest (including any Additional Interest) in respect of
which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on
the Securities for principal and any premium and interest (including any
Additional Interest), respectively; and
FOURTH:
The balance, if any, to the Person or Persons entitled thereto.
SECTION
5.7.
Limitation
on Suits.
Subject
to
Section
5.8
,
no
Holder of any Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment
of
a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(a)
such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities;
(b)
the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c)
such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d)
the
Trustee after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding for sixty (60) days; and
(e)
no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities;
it
being
understood and intended that no one or more of such Holders shall have any
right
in any manner whatever by virtue of, or by availing itself of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Securities, or to obtain or to seek to obtain priority or preference over
any
other of such Holders or to enforce any right under this Indenture, except
in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION
5.8.
Unconditional
Right of Holders to Receive Principal, Premium and Interest; Direct Action
by
Holders of Preferred Securities.
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 or the Guarantor 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.
SECTION
5.9.
Restoration
of Rights and Remedies.
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 Guarantor, 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.
SECTION
5.10.
Rights
and Remedies Cumulative.
Except
as
otherwise provided in
Section
3.6(f)
,
no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to
every other right and remedy given hereunder or now or hereafter existing at
law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION
5.11.
Delay
or Omission Not Waiver.
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.
SECTION
5.12.
Control
by Holders.
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 the 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.
SECTION
5.13.
Waiver
of Past Defaults.
(a)
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities and 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 or the Guarantor has paid to or deposited with the Trustee a sum
sufficient to pay all installments of interest (including any Additional
Interest) due and past due and all principal of and any premium on all
Securities due otherwise than by acceleration), or
(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.
SECTION
5.14.
Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his or
her
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but
the provisions of this
Section
5.14
shall
not apply to any suit instituted by the Trustee, to any suit instituted by
any
Holder, or group of Holders, holding in the aggregate more than ten percent
(10%) in aggregate principal amount of the Outstanding Securities, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or any premium on the Security after the Stated Maturity or any
interest (including any Additional Interest) on any Security after it is due
and
payable.
SECTION
5.15.
Waiver
of Usury, Stay or Extension Laws.
Each
of
the Company and the Guarantor covenants (to the extent that it may lawfully
do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it
will not hinder, delay or impede the execution of any power herein granted
to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE
VI
The
Trustee
SECTION
6.1.
Corporate
Trustee Required.
There
shall at all times be a Trustee hereunder with respect to the Securities. The
Trustee shall be a corporation 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
.
SECTION
6.2.
Certain
Duties and Responsibilities.
(a)
Except
during the continuance of an Event of Default:
(i)
the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(ii)
in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture;
provided
,
that in
the case of any such certificates or opinions that by any provision hereof
are
specifically required to be furnished to the Trustee, the Trustee shall be
under
a duty to examine the same to determine whether or not they substantially
conform on their face to the requirements of this Indenture.
(b)
If
an
Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall, prior to the receipt of directions, if any, from the Holders
of
at least a majority in aggregate principal amount of the Outstanding Securities
(or,
if
applicable, from the holders of a majority in aggregate Liquidation Amount
of
the 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 for
the
Trustee’s good faith reliance on the provisions of this Indenture. The
provisions of this Indenture, to the extent that they restrict the duties and
liabilities of the Trustee otherwise existing at law or in equity, are agreed
by
the Company and the Holders to replace such other duties and liabilities of
the
Trustee.
(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, if applicable, from the holders of a majority in aggregate Liquidation
Amount of the 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 and money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
SECTION
6.3.
Notice
of Defaults.
Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless such
default shall have been cured or waived;
provided
,
that
except in the case of a default in the payment of the principal of or any
premium or interest on any Securities, the Trustee shall be fully protected
in
withholding the notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of
the
Trustee in good faith determines that withholding the notice is in the interest
of holders of Securities; and
provided
further
,
that in
the case of any default of the character specified in
Section
5.1(c)
,
no such
notice to Holders shall be given until at least thirty (30) days after the
occurrence thereof. For the purpose of this
Section
6.3
,
the
term “default” means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION
6.4.
Certain
Rights of Trustee.
Subject
to the provisions of
Section
6.2
:
(a)
the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note or other
paper
or document believed by it to be genuine and to have been signed or presented
by
the proper party or parties;
(b)
if
(i) in
performing its duties under this Indenture the Trustee is required to decide
between alternative courses of action, (ii) in construing any of the provisions
of this Indenture the Trustee finds ambiguous or inconsistent with any other
provisions contained herein or (iii) the Trustee is unsure of the application
of
any provision of this Indenture, then, except as to any matter as to which
the
Holders are entitled to decide under the terms of this Indenture, the Trustee
shall deliver a notice to the Company requesting the Company’s written
instruction as to the course of action to be taken and the Trustee shall take
such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided
,
that if
the Trustee does not receive such instructions from the Company within ten
Business Days after it has delivered such notice or such reasonably shorter
period of time set forth in such notice the Trustee may, but shall be under
no
duty to, take such action, or refrain from taking such action, as the Trustee
shall deem advisable and in the best interests of the Holders, in which event
the Trustee shall have no liability except for its own negligence, bad faith
or
willful misconduct;
(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, the Guarantor or any of their 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
to
examine the books, records and premises of the Company and the Guarantor,
personally or by agent or attorney;
(g)
the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
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 Officer’s Certificate addressing such matter, which, upon receipt of such
request, shall be promptly delivered by the Company or the
Guarantor;
(l)
the
Trustee shall not be charged with knowledge of any default or 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, the Guarantor or a Holder; and
(m)
in
the
event that the Trustee is also acting as Paying Agent, Authenticating Agent
or
Securities Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this
Article
VI
shall
also be afforded such Paying Agent, Authenticating Agent, or Securities
Registrar.
SECTION
6.5.
May
Hold Securities.
The
Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar
or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company and the Guarantor with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Securities Registrar or such other
agent.
SECTION
6.6.
Compensation;
Reimbursement; Indemnity.
(a)
The
Company agrees
(i)
to
pay to
the Trustee from time to time reasonable compensation for all services rendered
by it hereunder in such amounts as the Company and the Trustee shall agree
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 (including
in its individual capacity) 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 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.
(b)
To
secure
the Company’s payment obligations in this Section 6.6, the Company hereby grants
and pledges to the Trustee and the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee, other
than
money or property held in trust to pay principal and interest on particular
Securities. Such lien shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee.
(c)
The
obligations of the Company and the Guarantor under this
Section
6.6
shall
survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee.
(d)
In
no
event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, even if the Trustee has been advised of the likelihood of
such
loss or damage and regardless of the form of action.
(e)
In
no
event shall the Trustee be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
SECTION
6.7.
Resignation
and Removal; Appointment of Successor.
(a)
No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this
Article
VI
shall
become effective until the acceptance of appointment by the successor Trustee
under
Section
6.8
.
(b)
The
Trustee may resign at any time by giving written notice thereof to the
Company.
(c)
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 and to the
Guarantor.
(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.
SECTION
6.8.
Acceptance
of Appointment by Successor.
(a)
In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b)
Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a)
of
this
Section
6.8
.
(c)
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article
VI
.
SECTION
6.9.
Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Trustee may be merged or converted or with which it may
be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto,
provided
,
that
such Person shall be otherwise qualified and eligible under this
Article
VI
.
In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation or as
otherwise provided above in this
Section
6.9
to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated, and in case any Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name
of any predecessor Trustee or in the name of such successor Trustee, and in
all
cases the certificate of authentication shall have the full force which it
is
provided anywhere in the Securities or in this Indenture that the certificate
of
the Trustee shall have.
SECTION
6.10.
Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company
or the Guarantor, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of the Securities or the proceeds
thereof.
SECTION
6.11.
Appointment
of Authenticating Agent.
(a)
The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section
3.6
,
and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation 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 or the Guarantor 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 the following form:
This
represents Securities designated therein and referred to in the within mentioned
Indenture.
|
Dated:
|
|
|
|
|
WILMINGTON
TRUST COMPANY
,
not in its individual capacity, but solely as Trustee
|
|
|
|
|
|
Authenticating
Agent
|
|
|
|
ARTICLE
VII
Holders’
Lists and Reports by Trustee and Company
SECTION
7.1.
Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a)
semi-annually,
on or before June 30 and December 31 of each year, a list, in such form as
the
Trustee may reasonably require, of the names and addresses of the Holders as
of
a date not more than fifteen (15) days prior to the delivery thereof,
and
(b)
at
such
other times as the Trustee may request in writing, within thirty (30) days
after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than fifteen (15) days prior to the time such
list
is furnished, in each case to the extent such information is in the possession
or control of the Company and has not otherwise been received by the Trustee
in
its capacity as Securities Registrar.
SECTION
7.2.
Preservation
of Information, Communications to Holders.
(a)
The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in
Section
7.1
and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as
provided in
Section
7.1
upon
receipt of a new list so furnished.
(b)
The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights
and
privileges of the Trustee, shall be as provided in the Trust Indenture
Act.
(c)
Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information
as
to the names and addresses of the Holders made pursuant to the Trust Indenture
Act.
SECTION
7.3.
Reports
by Company and Trustee.
(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.
(b)
The
Company shall furnish to (i) the Holders and to subsequent holders of Securities
reasonably identified to the Company, (ii) the Purchaser, (iii) any beneficial
owner of the Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or the Purchaser)
and
(iv) any designee of (i), (ii) or (iii) above, a duly completed and executed
certificate 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.
(c)
If
the
Company intends to file its annual and quarterly information with the Commission
in electronic form pursuant to Regulation S-T of the Commission using the EDGAR
system, the Company shall notify the Trustee in the manner prescribed herein
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. 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
and, if
applicable, with Section 314(a) of the Trust Indenture Act, but shall not
relieve the Company of the requirement to deliver the certificate referred
to in
Section
7.3(b)
.
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 contents thereof, including the Company’s compliance with any of its
covenants hereunder, as to which the Trustee is entitled to rely upon Officer’s
Certificates.
(d)
The
Trustee shall receive all reports, certificates and information, which it is
entitled to receive under each of the Operative Documents (as defined in the
Trust Agreement), and deliver to the Purchaser, or its designees, as identified
in writing to the Trustee, all such reports, certificates or information
promptly upon receipt thereof.
ARTICLE
VIII
Consolidation,
Merger, Conveyance, Transfer or Lease
SECTION
8.1.
Company
and Guarantor May Consolidate, Etc., Only on Certain Terms.
(a)
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to
any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(i)
if
the
Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
the entity formed by such consolidation or into which the Company is merged
or
the Person that acquires by conveyance or transfer, or that leases, the
properties and assets of the Company substantially as an entirety shall be
an
entity organized and existing under the laws of the United States of America
or
any State or Territory thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, 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;
(ii)
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
(iii)
the
Company has delivered to the Trustee an Officer’s 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 Officer’s Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this
Section
8.1
.
(b)
The
Guarantor 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 Guarantor or
convey, transfer or lease its properties and assets substantially as an entirety
to the Guarantor, unless:
(i)
if
the
Guarantor 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 Guarantor
is
merged or the Person that acquires by conveyance or transfer, or that leases,
the properties and assets of the Guarantor 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 Guarantor to be performed or
observed;
(ii)
immediately
after giving effect to such transaction, no Event of Default, and no event
that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and
(iii)
the
Guarantor has delivered to the Trustee an Officer’s 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 Officer’s Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this
Section
8.1
.
SECTION
8.2.
Successor
Company or Guarantor Substituted.
(a)
Upon
any
consolidation or merger by the Company or the Guarantor with or into any other
Person, or any conveyance, transfer or lease by the Company or Guarantor 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
or the Guarantor under this Indenture with the same effect as if such successor
Person had been named as the Company or the Guarantor herein; and in the event
of any such conveyance or transfer, following the execution and delivery of
such
supplemental indenture, the Company or the Guarantor shall be discharged from
all obligations and covenants under the Indenture and the
Securities.
(b)
Such
successor Person to the Company may cause to be executed, and may issue either
in its own name or in the name of the Company, any or all of the Securities
issuable hereunder that theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
that such successor Person thereafter shall cause to be executed and delivered
to the Trustee on its behalf. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture.
(c)
In
case
of any such consolidation, merger, sale, conveyance or lease, such changes
in
phraseology and form may be made in the Securities thereafter to be issued
as
may be appropriate to reflect such occurrence.
ARTICLE
IX
Supplemental
Indentures
SECTION
9.1.
Supplemental
Indentures without Consent of Holders.
Without
the consent of any Holders, the Company and the Guarantor, when authorized
by
Board Resolutions, 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 or the Guarantor,
and
the assumption by any such successor of the covenants of the Company or the
Guarantor herein and in the Securities; or
(b)
to
cure
any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or 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 the Guarantor
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; or
(e)
to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee,
provided
,
that
such action pursuant to this clause (e) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities; or
(f)
to
comply
with the rules and regulations of any securities exchange or automatic quotation
system on which any of the Securities may be listed, traded or quoted,
provided
,
that
such action pursuant to this clause (f) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities.
SECTION
9.2.
Supplemental
Indentures with Consent of Holders.
(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,
the Guarantor and the Trustee, the Company and the Guarantor, when authorized
by
Board Resolutions, 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 Trust
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 Trust 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.
SECTION
9.3.
Execution
of Supplemental Indentures.
In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this
Article
IX
or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall
be entitled to receive, and shall be fully protected in conclusively relying
upon, an Officer’s Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for relating to
such action have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee’s own
rights, duties, indemnities or immunities under this Indenture or otherwise.
Copies of the final form of each supplemental indenture shall be delivered
by
the Trustee at the expense of the Company to each Holder, and, if the Trustee
is
the Property Trustee, to each holder of Preferred Securities, promptly after
the
execution thereof.
SECTION
9.4.
Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this
Article
IX
,
this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION
9.5.
Reference
in Securities to Supplemental Indentures.
ARTICLE
X
Covenants
SECTION
10.1.
Payment
of Principal, Premium and Interest.
The
Company covenants and agrees for the benefit of the Holders of the Securities
that it will duly and punctually pay the principal of and any premium and
interest (including any Additional Interest) on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION
10.2.
Money
for Security Payments to be Held in Trust.
(a)
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
terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(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.
SECTION
10.3.
Statement
as to Compliance.
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 Officer’s Certificate (substantially in the form attached hereto as
Exhibit
B
)
covering the preceding fiscal year, stating whether or not to the knowledge
of
the signers thereof the Company is in default in the performance or observance
of any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder), and if
the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION
10.4.
Calculation
Agent.
(a)
The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR
in
respect of each Interest Payment Date in accordance with the terms of
Schedule
A
(the
“
Calculation
Agent
”).
The
Company has initially appointed the 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. Except as described in the
immediately preceding sentence, so long as the Property Trustee holds any of
the
Securities, the Calculation Agent shall be the Property Trustee. 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 and dollar amount (rounded to the nearest cent, with half
a
cent being rounded upwards) for the related Interest Payment Date, and will
communicate such rate and amount to the Company, the Trustee, each Paying Agent
and the Depositary. The Calculation Agent will also specify to the Company
the
quotations upon which the foregoing rates and amounts are based and, in any
event, the Calculation Agent shall notify the Company before 5:00 p.m. (London
time) on each LIBOR Determination Date that either: (i) it has determined or
is
in the process of determining the foregoing rates and amounts or (ii) it has
not
determined and is not in the process of determining the foregoing rates and
amounts, together with its reasons therefor. The Calculation Agent’s
determination of the foregoing rates and amounts for any Interest Payment Date
will (in the absence of manifest error) be final and binding upon all parties.
For the sole purpose of calculating the interest rate for the Securities,
“Business Day” shall be defined as any day on which dealings in deposits in
Dollars are transacted in the London interbank market.
SECTION
10.5.
Additional
Tax Sums.
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.
SECTION
10.6.
Additional
Covenants.
(a)
The
Company and Guarantor covenant and agree 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 or
the Guarantor’s Equity Interests, (ii) vote in favor of or permit or otherwise
allow any of its respective Subsidiaries to declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to or otherwise retire, any shares of any such Subsidiary’s
preferred stock or other Equity Interests entitling the holders thereof to
a
stated rate of return, other than dividends or distributions on Equity Interests
payable to the Guarantor, the Company or any Subsidiary thereof (for the
avoidance of doubt, whether such preferred stock or other Equity Interests
are
perpetual or otherwise), or (iii) make any payment of principal of or any
interest or premium on or repay, repurchase or redeem any debt securities of
the
Company or Guarantor 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 Equity Interests
of
the Company or Guarantor 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 Equity Interests of the Company or Guarantor (or securities
convertible into or exercisable for such Equity Interests) as consideration
in
an acquisition transaction entered into prior to the applicable Event of
Default, (B) as a result of an exchange or conversion of any class or series
of
the Company’s or the Guarantor’s Equity Interests (or any Equity Interests of a
Subsidiary of the Company or Guarantor) for any class or series of the Company’s
or the Guarantor’s Equity Interests or of any class or series of the Company’s
or the Guarantor’s indebtedness for any class or series of the Company’s or the
Guarantor’s Equity Interests, (C) the purchase of fractional interests in shares
of the Company’s or the Guarantor’s Equity Interests pursuant to the conversion
or exchange provisions of such Equity Interests or the security being converted
or exchanged, (D) any declaration of a dividend in connection with any Rights
Plan, the issuance of rights, stock or other property under any Rights Plan
or
the redemption or repurchase of rights pursuant thereto, or (E) any dividend
in
the form of Equity Interests, warrants, options or other rights where the
dividend Equity Interest or the Equity Interest issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or rank
pari
passu
with
or
junior to such Equity Interests).
(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.
(c)
The
Guarantor agrees that the Guarantor will use its commercially reasonable 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 unless
and
until the Board of Directors of the Guarantor determines that it is in the
best
interests of the Guarantor not to be organized as a REIT, the Guarantor will
be
organized in conformity with the requirements for qualification as a REIT under
the Code.
SECTION
10.7.
Waiver
of Covenants.
The
Company may omit in any particular instance to comply with any covenant or
condition contained in
Section
10.6
if,
before or after the time for such compliance, the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities shall, by Act of
such Holders, 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.
SECTION
10.8.
Treatment
of Securities.
The
Company will treat the Securities as indebtedness, and the amounts, other than
payments of principal, payable in respect of the principal amount of such
Securities as interest, for all U.S. federal income tax purposes. All payments
in respect of the Securities will be made free and clear of U.S. withholding
tax
to any beneficial owner thereof that has provided an Internal Revenue Service
Form 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 and establishing that
no
withholding is required for U.S. federal income tax purposes, or any other
applicable form establishing an exemption from U.S. withholding
tax.
ARTICLE
XI
Redemption
of Securities
SECTION
11.1.
Optional
Redemption.
The
Company may, at its option, on any Interest Payment Date, on or after September
30, 2011, redeem the Securities in whole at any time or in part from time to
time, at a Redemption Price equal to one hundred percent (100%) of the 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, to but excluding the date fixed for redemption.
SECTION
11.2.
Special
Event Redemption.
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 three percent (103%) of the principal amount thereof,
together, in the case of any such redemption, with accrued interest, including
any Additional Interest, to but excluding the date fixed for redemption (the
“Special Event Redemption Price”)
.
SECTION
11.3.
Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities, in whole or in part, shall
be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the
election of the Company, the Company shall, not less than thirty (30) days
and
not more than sixty (60) 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 Officer’s Certificate and an Opinion of Counsel
evidencing compliance with such restriction or condition.
SECTION
11.4.
Selection
of Securities to be Redeemed.
(a)
If
less
than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected and redeemed on a pro rata basis not more than sixty
(60) days prior to the Redemption Date by the Trustee from the Outstanding
Securities not previously called for redemption,
provided
,
that
the unredeemed portion of the principal amount of any Security shall be in
an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
(b)
The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Security that has been or is to be redeemed.
(c)
The
provisions of paragraphs (a) and (b) of this
Section
11.4
shall
not apply with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part. In the case of
any
such redemption in part, the unredeemed portion of the principal amount of
the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
SECTION
11.5.
Notice
of Redemption.
(a)
Notice
of
redemption shall be given not later than the thirtieth (30th) day, and not
earlier than the sixtieth (60th) day, prior to the Redemption Date to 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.
SECTION
11.6.
Deposit
of Redemption Price.
Prior
to
10:00 a.m., New York City time, on the Redemption Date specified in the notice
of redemption given as provided in
Section
11.5
,
the
Company will deposit with the Trustee or with one or more Paying Agents (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.
SECTION
11.7.
Payment
of Securities Called for Redemption.
(a)
If
any
notice of redemption has been given as provided in
Section
11.5
,
the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment specified
in
such notice, the Securities or the specified portions thereof shall be paid
and
redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption
Date.
(b)
Upon
presentation of any Security redeemed in part only, the Company shall execute
and upon receipt thereof the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities,
of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms.
(c)
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal of and any premium on such Security shall, until
paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
ARTICLE
XII
Subordination
of Securities
SECTION
12.1.
Securities
Subordinate to Senior Debt of the Company.
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 of the Company. Notwithstanding anything herein to the contrary,
the
Securities shall be senior to the trade debt of the Company incurred in the
ordinary course of business.
SECTION
12.2.
No
Payment When Senior Debt of the Company in Default; Payment Over of Proceeds
Upon Dissolution, Etc.
(a)
In
the
event and during the continuation of any default by the Company in the payment
of any principal of or any premium or interest on any Senior Debt of the Company
(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 of the Company 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 of the Company (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
of
the Company 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 of the Company in accordance with the priorities then existing
among
such holders until all Senior Debt of the Company (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 of the Company, 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 premium, if any, and interest (including any Additional Interest) on the
Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any Equity
Interests or any obligations of the Company ranking junior to the Securities
and
such other obligations. If, notwithstanding the foregoing, any payment or
distribution of any character 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 of the Company 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 of the Company 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 of the Company at the time outstanding in accordance
with the priorities then existing among such holders for application to the
payment of all Senior Debt of the Company remaining unpaid, to the extent
necessary to pay all such Senior Debt of the Company (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 of the Company
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 of the Company 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 of the Company
at the time outstanding, be necessary or appropriate to assure the effectiveness
of the subordination effected by these provisions.
(e)
The
provisions of this
Section
12.2
shall
not impair any rights, interests, remedies or powers of any secured creditor
of
the Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
(f)
The
securing of any obligations of the Company, otherwise ranking on a parity with
the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking
on
a parity with the Securities or ranking junior to the Securities.
SECTION
12.3.
Payment
Permitted If No Default.
Nothing
contained in this
Article
XII
or
elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Company, at any time, except during the pendency of the conditions described
in
paragraph (a) of
Section
12.2
or of
any Proceeding referred to in
Section 12.2
,
from
making payments at any time of principal of and any premium or interest
(including any Additional Interest) on the Securities or (b) the application
by
the Trustee of any moneys deposited with it hereunder to the payment of or
on
account of the principal of and any premium or interest (including any
Additional Interest) on the Securities or the retention of such payment by
the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge (in accordance with
Section
12.8
)
that
such payment would have been prohibited by the provisions of this
Article
XII
,
except
as provided in
Section
12.8
.
SECTION
12.4.
Subrogation
to Rights of Holders of Senior Debt of the Company.
Subject
to the payment in full of all amounts due or to become due on all Senior Debt
of
the Company, or the provision for such payment in cash or cash equivalents
or
otherwise in a manner satisfactory to the holders of Senior Debt of the Company,
the Holders of the Securities shall be subrogated to the extent of the payments
or distributions made to the holders of such Senior Debt of the Company 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 of the Company
and is entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt of the Company) to the rights
of the holders of such Senior Debt of the Company to receive payments and
distributions of cash, property and securities applicable to the Senior Debt
of
the Company 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 the Company 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 of the Company by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt of the Company, 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
of
the Company.
SECTION
12.5.
Provisions
Solely to Define Relative Rights.
The
provisions of this
Article
XII
are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Senior Debt of
the
Company 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 of
the
Company 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 of the Company to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION
12.6.
Trustee
to Effectuate Subordination.
Each
Holder of a Security by his or her acceptance thereof authorizes and directs
the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article
XII
and
appoints the Trustee his or her attorney-in-fact for any and all such
purposes.
SECTION
12.7.
No
Waiver of Subordination Provisions.
(a)
No
right
of any present or future holder of any Senior Debt of the Company 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 of the Company 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 of the Company, 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 of the Company, or otherwise amend or supplement in any manner
Senior Debt of the Company or any instrument evidencing the same or any
agreement under which Senior Debt of the Company is outstanding, (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt of the Company, (iii) release any Person liable
in any manner for the payment of Senior Debt of the Company and (iv) exercise
or
refrain from exercising any rights against the Company and any other
Person.
SECTION
12.8.
Notice
to Trustee.
(a)
The
Company shall give prompt written notice to a Responsible Officer of the Trustee
of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this
Article
XII
or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until
a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder of Senior Debt of the Company 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 of the
Company (or a trustee, agent, representative or attorney-in-fact therefor)
to
establish that such notice has been given by a holder of Senior Debt of the
Company (or a trustee, agent, representative or attorney-in-fact therefor).
With
respect to any Senior Debt that is a syndicated loan, all rights of the holders
of such Senior Debt (including, without limitation, the rights to give and
receive notices) may be taken or exercised on behalf of the holders of such
Senior Debt by an administrative agent for such holders or an equivalent party
to the extent set forth therein. 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 of the Company 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 of the Company
held
by such Person, the extent to which such Person is entitled to participate
in
such payment or distribution and any other facts pertinent to the rights of
such
Person under this
Article
XII
,
and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION
12.9.
Reliance
on Judicial Order or Certificate of Liquidating Agent.
Upon
any
payment or distribution of assets of the Company referred to in this
Article
XII
,
the
Trustee and the Holders of the Securities shall be entitled to conclusively
rely
upon any order or decree entered by any court of competent jurisdiction in
which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders
of
the Senior Debt of the Company and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this
Article
XII
.
SECTION
12.10.
Trustee
Not Fiduciary for Holders of Senior Debt of the Company.
The
Trustee, in its capacity as trustee under this Indenture, shall not owe or
be
deemed to owe any fiduciary duty to the holders of Senior Debt of the Company
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
of
the Company shall be entitled by virtue of this
Article
XII
or
otherwise.
SECTION
12.11.
Rights
of Trustee as Holder of Senior Debt of the Company; Preservation of Trustee’s
Rights.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this
Article
XII
with
respect to any Senior Debt of the Company that may at any time be held by it,
to
the same extent as any other holder of Senior Debt of the Company, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such of its obligations as are specifically set
forth
in this Article XII, and no implied covenants or obligations with respect to
the
holders of such Senior Debt of the Company shall be read into this Indenture
against the Trustee. Nothing in this Article XII shall apply to claims of,
or
payments to, the Trustee under or pursuant to Section 6.6.
SECTION
12.12.
Article
Applicable to Paying Agents.
If
at any
time any Paying Agent other than the Trustee shall have been appointed by the
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.
ARTICLE
XIII
Guarantee
SECTION
13.1.
The
Guarantee
.
The
Guarantor hereby fully, unconditionally and irrevocably guarantees to each
holder of a Security authenticated and delivered by the Trustee the due and
punctual payment of the principal of and premium, if any, and interest
(including Additional Interest) on such Security, when and as the same shall
become due and payable, whether at maturity, by acceleration, upon redemption
or
otherwise, in accordance with the terms of such Security and this Indenture,
as
well as the due and punctual performance of all other obligations contained
in
the Securities and this Indenture. In case of the failure of the Company to
punctually pay its obligations on any Security, the Guarantor hereby agrees
to
cause any such payment to be made punctually when and as the same shall become
due and payable, whether at maturity, by acceleration, upon redemption or
otherwise, and as if such payment were made by the Company.
SECTION
13.2.
Guarantee
Unconditional, etc
.
The
Guarantor hereby agrees that it shall be liable as principal and as debtor
hereunder with respect to its obligations under this Article. This Article
creates a guarantee of payment and not of collection on the part of the
Guarantor. The Guarantor’s obligations hereunder shall be absolute, irrevocable
and unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Security or this Indenture, any failure
to enforce the provisions of any Security or this Indenture, or any waiver,
modification, consent or indulgence granted with respect thereto by the holder
of such Security or the Trustee, the recovery of any judgment against the
Company or any action to enforce the same, or any other circumstances which
may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing
of
claims with a court in the event of merger, insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest
or
notice with respect to any such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of and premium, if any,
and interest (including Additional Interest) on the Securities and the complete
performance of all other obligations contained in the Securities and this
Indenture. The Guarantor further agrees, to the fullest extent that it lawfully
may do so, that, as between the Guarantor, on the one hand, and the Holders
and
the Trustee, on the other hand, the maturity of the Securities shall or may,
as
the case may be, be accelerated as provided in this Indenture for purposes
of
the Guarantor’s obligations under this Guarantee, notwithstanding any stay,
injunction or prohibition existing under any bankruptcy, insolvency,
reorganization or other similar law of any jurisdiction preventing such
acceleration in respect of the obligations guaranteed hereby.
SECTION
13.3.
Reinstatement
.
This
Guarantee shall continue to be effective or be reinstated, as the case may
be,
if at any time a payment in respect of any Security, in whole or in part, is
rescinded or must otherwise be restored to the Company or the Guarantor upon
the
bankruptcy, liquidation or reorganization of the Company or
otherwise.
SECTION
13.4.
Subrogation
.
The
Guarantor shall be subrogated to all rights of the Holder of any Security
against the Company in respect of any amounts paid to such Holder by the
Guarantor pursuant to the provisions of this Guarantee;
provided
,
however
,
that
the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation as a result of payment
under this Guarantee, if, after giving effect to any such payment, any amounts
are due and unpaid under this Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay such amount to the
Holders.
ARTICLE
XIV
Subordination
of Guarantee
SECTION
14.1.
Securities
Subordinate to Senior Debt of the Guarantor
.
The
Guarantor 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
XIV
,
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 of the Guarantor. Notwithstanding anything herein to the contrary,
the guarantee of the Securities shall be senior to the trade debt of the
Guarantor incurred in the ordinary course of business.
SECTION
14.2.
No
Payment When Senior Debt of the Guarantor in Default; Payment Over of Proceeds
Upon Dissolution, Etc.
(a)
In
the
event and during the continuation of any default by the Guarantor in the payment
of any principal of or any premium or interest on any Senior Debt of the
Guarantor (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 Guarantor by the holders of such Senior Debt of the Guarantor
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 of the Guarantor (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 Guarantor 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
of
the Guarantor 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 of the Guarantor in accordance with the priorities then existing
among such holders until all Senior Debt of the Guarantor (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 of the Guarantor, the Holders of the Securities, together with
the
holders of any obligations of the Guarantor ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Guarantor 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 Guarantor 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 Guarantor 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 of the Guarantor 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 of the Guarantor 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 of the Guarantor at the time outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Debt of the Guarantor remaining unpaid, to the
extent necessary to pay all such Senior Debt of the Guarantor (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 of the
Guarantor is hereby irrevocably authorized to endorse or assign the
same.
(d)
The
Trustee and the Holders, at the expense of the Guarantor, shall take such
reasonable action (including the delivery of this Indenture to an agent for
any
holders of Senior Debt of the Guarantor 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 of the
Guarantor 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
14.2
shall
not impair any rights, interests, remedies or powers of any secured creditor
of
the Guarantor 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 Guarantor, otherwise ranking on a parity
with
the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking
on
a parity with the Securities or ranking junior to the Securities.
SECTION
14.3.
Payment
Permitted If No Default
.
Nothing
contained in this
Article
XIV
or
elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Guarantor, at any time, except during the pendency of the conditions described
in paragraph (a) of
Section
14.2
or of
any Proceeding referred to in
Section 14.2
,
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
14.8
)
that
such payment would have been prohibited by the provisions of this
Article
XIV
,
except
as provided in
Section
14.8
.
SECTION
14.4.
Subrogation
to Rights of Holders of Senior Debt of the Guarantor
.
Subject
to the payment in full of all amounts due or to become due on all Senior Debt
of
the Guarantor, or the provision for such payment in cash or cash equivalents
or
otherwise in a manner satisfactory to the holders of Senior Debt of the
Guarantor, the Holders of the Securities shall be subrogated to the extent
of
the payments or distributions made to the holders of such Senior Debt of the
Guarantor pursuant to the provisions of this
Article
XIV
(equally
and ratably with the holders of all indebtedness of the Guarantor that by its
express terms is subordinated to Senior Debt of the Guarantor to substantially
the same extent as the Securities are subordinated to the Senior Debt of the
Guarantor and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt of the Guarantor)
to the rights of the holders of such Senior Debt of the Guarantor to receive
payments and distributions of cash, property and securities applicable to the
Senior Debt of the Guarantor 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 the Guarantor 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
XIV
,
and no
payments made pursuant to the provisions of this
Article
XIV
to the
holders of Senior Debt of the Guarantor by Holders of the Securities or the
Trustee, shall, as among the Guarantor, its creditors other than holders of
Senior Debt of the Guarantor, and the Holders of the Securities, be deemed
to be
a payment or distribution by the Guarantor to or on account of the Senior Debt
of the Guarantor.
SECTION
14.5.
Provisions
Solely to Define Relative Rights
.
The
provisions of this
Article
XIV
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 of the
Guarantor on the other hand. Nothing contained in this
Article
XIV
or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as between the Guarantor and the Holders of the Securities, the
obligations of the Guarantor, 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 Guarantor of the Holders of the Securities and creditors
of
the Guarantor other than their rights in relation to the holders of Senior
Debt
of the Guarantor 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
XIV
of the
holders of Senior Debt of the Guarantor to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION
14.6.
Trustee
to Effectuate Subordination
.
Each
Holder of a Security by such Holder’s acceptance thereof authorizes and directs
the Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article
XIV
and
appoints the Trustee such Holder’s attorney-in-fact for any and all such
purposes.
SECTION
14.7.
No
Waiver of Subordination Provisions
.
(a)
No
right
of any present or future holder of any Senior Debt of the Guarantor 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 Guarantor or by any
act
or failure to act, in good faith, by any such holder, or by any noncompliance
by
the Guarantor 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
14.7
,
the
holders of Senior Debt of the Guarantor 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
XIV
or the
obligations hereunder of such Holders of the Securities to the holders of Senior
Debt of the Guarantor, take or fail to take any action, including without
limitation: (i) change the manner, place or terms of payment or extend the
time
of payment of, or renew or alter, Senior Debt of the Guarantor, or otherwise
amend or supplement in any manner Senior Debt of the Guarantor or any instrument
evidencing the same or any agreement under which Senior Debt of the Guarantor
is
outstanding, (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt of the Guarantor, (iii)
release any Person liable in any manner for the payment of Senior Debt of the
Guarantor and (iv) exercise or refrain from exercising any rights against the
Guarantor and any other Person.
SECTION
14.8.
Notice
to Trustee
.
(a)
The
Guarantor shall give prompt written notice to a Responsible Officer of the
Trustee of any fact known to the Guarantor that would prohibit the making of
any
payment to or by the Trustee in respect of the Securities. Notwithstanding
the
provisions of this
Article
XIV
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 Guarantor or a holder of Senior Debt of the Guarantor or from any
trustee, agent or representative therefor;
provided
,
that if
the Trustee shall not have received the notice provided for in this
Section
14.8
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 of the
Guarantor (or a trustee, agent, representative or attorney-in-fact therefor)
to
establish that such notice has been given by a holder of Senior Debt of the
Guarantor (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
of
the Guarantor to participate in any payment or distribution pursuant to this
Article
XIV
,
the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt of the Guarantor
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
XIV
,
and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION
14.9.
Reliance
on Judicial Order or Certificate of Liquidating Agent
.
Upon
any
payment or distribution of assets of the Guarantor referred to in this
Article
XIV
,
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 of the Guarantor and other indebtedness of the Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article
XIV
.
SECTION
14.10.
Trustee
Not Fiduciary for Holders of Senior Debt of the Guarantor
.
The
Trustee, in its capacity as trustee under this Indenture, shall not owe or
be
deemed to owe any fiduciary duty to the holders of Senior Debt of the Guarantor
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 Guarantor or to any
other Person cash, property or securities to which any holders of Senior Debt
of
the Guarantor shall be entitled by virtue of this
Article
XIV
or
otherwise.
SECTION
14.11.
Rights
of Trustee as Holder of Senior Debt of the Guarantor; Preservation of Trustee’s
Rights
.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this
Article
XIV
with
respect to any Senior Debt of the Guarantor that may at any time be held by
it,
to the same extent as any other holder of Senior Debt of the Guarantor, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such
holder. With respect to the holders of Senior Debt of the Guarantor, the Trustee
undertakes to perform only such of its obligations as are specifically set
forth
in this Article XIV, and no implied covenants or obligations with respect to
the
holders of such Senior Debt of the Guarantor shall be read into this Indenture
against the Trustee. Nothing in this Article XIV shall apply to claims of,
or
payments to, the Trustee under or pursuant to Section 6.6.
SECTION
14.12.
Article
Applicable to Paying Agents
.
If
at any
time any Paying Agent other than the Trustee shall have been appointed by the
Guarantor and be then acting hereunder, the term “
Trustee
”
as
used
in this
Article
XIV
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
XIV
in
addition to or in place of the Trustee;
provided
,
that
Sections
14.8
and
14.11
shall
not apply to the Guarantor or any Affiliate of the Guarantor if the Guarantor
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. Delivery of an executed
signature page of this Indenture by facsimile transmission shall be effective
as
delivery of a manually executed counterpart hereof.
*
* *
*
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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NorthStar
Realty Finance Limited Partnership, as Issuer
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By:
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NorthStar
Realty
Finance Corp., its
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General
Partner
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By:
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/s/
Albert Tylis
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Name: Albert Tylis
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NorthStar
Realty Finance Corp., as Guarantor
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By:
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/s/
Albert Tylis
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Name:
Albert Tylis
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Wilmington
Trust Company, as Trustee
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By:
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/s/
Christopher
J. Slaybaugh
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Name:
Senior
Financial Services Officer
Title:
Christopher J. Slaybaugh
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AMENDED
AND RESTATED TRUST AGREEMENT
among
NORTHSTAR
REALTY FINANCE LIMITED PARTNERSHIP
,
as
Depositor
NORTHSTAR
REALTY FINANCE CORP.
,
as
Guarantor
WILMINGTON
TRUST COMPANY
as
Property Trustee
WILMINGTON
TRUST COMPANY
as
Delaware Trustee
and
THE
ADMINISTRATIVE TRUSTEES NAMED HEREIN
as
Administrative Trustees
Dated
as
of August 1, 2006
NORTHSTAR
REALTY FINANCE TRUST V
TABLE
OF CONTENTS
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Page
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ARTICLE
I.
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Defined
Terms
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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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ARTICLE
II.
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The
Trust
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10
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SECTION
2.1.
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Name
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10
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SECTION
2.2.
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Office
of the Delaware Trustee; Principal Place of Business
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10
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SECTION
2.3.
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Initial
Contribution of Trust Property; Fees, Costs and Expenses
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10
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SECTION
2.4.
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Purposes
of Trust
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11
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SECTION
2.5.
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Authorization
to Enter into Certain Transactions
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11
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SECTION
2.6.
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Assets
of Trust
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14
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SECTION
2.7.
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Title
to Trust Property
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14
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ARTICLE
III.
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Payment
Account; Paying Agents
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14
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SECTION
3.1.
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Payment
Account
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14
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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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15
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SECTION
4.1.
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Distributions
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15
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SECTION
4.2.
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Redemption
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16
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SECTION
4.3.
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Subordination
of Common Securities
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19
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SECTION
4.4.
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Payment
Procedures
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20
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SECTION
4.5.
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Withholding
Tax
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20
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SECTION
4.6.
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Tax
Returns and Other Reports
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20
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SECTION
4.7.
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Payment
of Taxes, Duties, Etc. of the Trust
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21
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SECTION
4.8.
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Payments
under Indenture or Pursuant to Direct Actions
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21
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SECTION
4.9.
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Exchanges
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21
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SECTION
4.10.
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Calculation
Agent
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21
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SECTION
4.11.
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Certain
Accounting Matters
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22
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ARTICLE
V.
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Securities
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23
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SECTION
5.1.
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Initial
Ownership
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23
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SECTION
5.2.
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Authorized
Trust Securities
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23
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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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23
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SECTION
5.4.
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The
Securities Certificates
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23
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SECTION
5.5.
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Rights
of Holders
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24
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SECTION
5.6.
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Book-Entry
Preferred Securities
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25
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SECTION
5.7.
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Registration
of Transfer and Exchange of Preferred Securities
Certificates
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26
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SECTION
5.8.
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Mutilated,
Destroyed, Lost or Stolen Securities Certificates
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28
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SECTION
5.9.
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Persons
Deemed Holders
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29
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SECTION
5.10.
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Cancellation
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29
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SECTION
5.11.
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Ownership
of Common Securities by Depositor
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29
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SECTION
5.12.
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Restricted
Legends
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30
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SECTION
5.13.
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Form
of Certificate of Authentication
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32
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ARTICLE
VI.
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Meetings;
Voting; Acts of Holders
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33
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SECTION
6.1.
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Notice
of Meetings
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33
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SECTION
6.2.
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Meetings
of Holders of the Preferred Securities
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33
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SECTION
6.3.
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Voting
Rights
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33
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SECTION
6.4.
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Proxies,
Etc
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33
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SECTION
6.5.
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Holder
Action by Written Consent
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34
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SECTION
6.6.
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Record
Date for Voting and Other Purposes
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34
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SECTION
6.7.
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Acts
of Holders
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34
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SECTION
6.8.
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Inspection
of Records
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35
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SECTION
6.9.
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Limitations
on Voting Rights
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35
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SECTION
6.10.
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Acceleration
of Maturity; Rescission of Annulment; Waivers of Past
Defaults
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36
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ARTICLE
VII.
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Representations
and Warranties
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38
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SECTION
7.1.
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Representations
and Warranties of the Property Trustee and the Delaware
Trustee
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38
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SECTION
7.2.
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Representations
and Warranties of Depositor
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39
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ARTICLE
VIII.
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The
Trustees
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40
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SECTION
8.1.
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Number
of Trustees
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40
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SECTION
8.2.
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Property
Trustee Required
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41
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SECTION
8.3.
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Delaware
Trustee Required
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41
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SECTION
8.4.
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Appointment
of Administrative Trustees
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41
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SECTION
8.5.
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Duties
and Responsibilities of the Trustees
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42
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SECTION
8.6.
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Notices
of Defaults and Extensions
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43
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SECTION
8.7.
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Certain
Rights of Property Trustee
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44
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SECTION
8.8.
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Delegation
of Power
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46
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SECTION
8.9.
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May
Hold Securities
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46
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SECTION
8.10.
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Compensation;
Reimbursement; Indemnity
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46
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SECTION
8.11.
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Resignation
and Removal; Appointment of Successor
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47
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SECTION
8.12.
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Acceptance
of Appointment by Successor
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49
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SECTION
8.13.
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Merger,
Conversion, Consolidation or Succession to Business
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49
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SECTION
8.14.
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Not
Responsible for Recitals or Issuance of Securities
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49
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SECTION
8.15.
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Property
Trustee May File Proofs of Claim
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49
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SECTION
8.16.
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Reports
to and from the Property Trustee
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50
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ARTICLE
IX.
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Termination,
Liquidation and Merger
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51
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SECTION
9.1.
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Dissolution
Upon Expiration Date
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51
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SECTION
9.2.
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Early
Termination
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51
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SECTION
9.3.
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Termination
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51
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SECTION
9.4.
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Liquidation
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52
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SECTION
9.5.
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Mergers,
Consolidations, Amalgamations or Replacements of Trust
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53
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ARTICLE
X.
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Information
to Purchaser
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54
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SECTION
10.1.
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Depositor
Obligations to Purchaser
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54
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SECTION
10.2.
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Property
Trustee’s Obligations to Purchaser
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54
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ARTICLE
XI.
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Miscellaneous
Provisions
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55
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SECTION
11.1.
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Limitation
of Rights of Holders
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55
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SECTION
11.2.
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Agreed
Tax Treatment of Trust and Trust Securities
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55
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SECTION
11.3.
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Amendment
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55
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SECTION
11.4.
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Separability
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57
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SECTION
11.5.
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Governing
Law
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57
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SECTION
11.6.
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Successors
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57
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SECTION
11.7.
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Headings
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57
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SECTION
11.8.
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Reports,
Notices and Demands
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57
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SECTION
11.9.
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Agreement
Not to Petition
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58
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Exhibit
A
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Certificate
of Trust of NorthStar Realty Finance Trust V
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Exhibit
B
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Form
of Common Securities Certificate
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Exhibit
C
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Form
of Preferred Securities Certificate
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Exhibit
D
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Junior
Subordinated Indenture
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Exhibit
E
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Form
of Transferee Certificate to be Executed by Transferees other than
QIBs
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Exhibit
F
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Form
of Transferor Certificate to be Executed by QIBs
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Exhibit
G
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Form
of Officer’s Financial Certificate
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Exhibit
H
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Form
of Officer’s Certificate pursuant to Section 8.16(a)
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Schedule
A
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Calculation
of LIBOR
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AMENDED
AND RESTATED TRUST AGREEMENT, dated as of August 1, 2006, among (i) NorthStar
Realty Finance Limited Partnership, a Delaware limited partnership (including
any successors or permitted assigns, the “Depositor”), (ii) NorthStar Realty
Finance Corp., a Maryland corporation (including any successors or permitted
assigns, the “Guarantor”), (iii) Wilmington Trust Company, a Delaware banking
corporation, as property trustee (in such capacity, the “Property Trustee”),
(iv) Wilmington Trust Company, a Delaware banking corporation, as Delaware
trustee (in such capacity, the “Delaware Trustee”), (v) David T. Hamamoto, an
individual, Richard J. McCready, an individual, and Andrew C. Richardson,
an
individual, each of whose address is c/o NorthStar Realty Finance Limited
Partnership, c/o NorthStar Realty Finance Corp., 527 Madison Avenue, New
York,
NY 10022, 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
(vi) the several Holders, as hereinafter defined.
W
HEREAS
,
the
Depositor, the Property Trustee 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 July 26, 2006 (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
W
HEREAS
,
the
Depositor
and the Trustees 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;
N
OW
,
T
HEREFORE
,
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:
(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
(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 Bankruptcy 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.
“Bankruptcy
Law” 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 a common security of the Trust, denominated as such and
representing an undivided beneficial interest in the assets of the Trust,
having
a Liquidation Amount of $1,000 and having the terms provided therefor in
this
Trust Agreement.
“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 Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Capital Markets.
“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 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):
(a)
the
occurrence of a Note Event of Default; or
(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
(c)
default by the Trust in the payment of any Redemption Price of any Trust
Security when it becomes due and payable; or
(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
(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.
“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.
“Global
Preferred Security” means a Preferred Securities Certificate evidencing
ownership of Book-Entry Preferred Securities.
“Guarantor”
has the meaning specified in the preamble to this Trust Agreement and any
successors and permitted assigns.
“Holder”
means a Person in whose name a Trust Security or Trust Securities are registered
in the Securities Register; any such Person shall 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,
the Guarantor and the Note Trustee contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the holders of the Notes,
a
copy of which is attached hereto as
Exhibit
D
,
as
amended or supplemented from time to time.
“Indenture
Redemption Price” has the meaning specified in
Section
4.2(c)
.
“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.
“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 of the Preferred Securities” means Preferred Securities
representing more than fifty percent (50%) of the aggregate Liquidation Amount
of all (or a specified group of) then Outstanding Preferred
Securities.
“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.
“Officer’s
Certificate” means a certificate signed by the Chief Executive Officer, the
President, an Executive Vice President, the Chief Financial Officer, the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
of the Depositor or the Guarantor, as applicable, and delivered to the Trustees.
Any Officer’s 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(a)
)
shall
include:
(a)
a
statement by each officer signing the Officer’s Certificate that such officer
has read the covenant or condition and the definitions relating
thereto;
(b)
a
brief statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officer’s Certificate;
(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
(d)
a
statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.
“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 the Guarantor or any Affiliate of the Depositor
or
the Guarantor.
“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, the Guarantor, any Trustee or any Affiliate
of the Depositor, the Guarantor 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, the Guarantor, 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,
the Guarantor, any Trustee or any Affiliate of the Depositor, the Guarantor
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 a preferred security of the Trust, denominated as such and
representing an undivided beneficial interest in the assets of the Trust,
having
a Liquidation Amount of $1,000 and having the terms 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, dated as of August 1, 2006, executed
and delivered by the Trust, the Depositor, the Guarantor, and the
Purchaser.
“Purchaser”
means TWE, Ltd., whose address is c/o Maples Finance Limited, P.O. Box 1093
GT,
Queensgate House, South Church Street, George Town, Grand Cayman, Cayman
Islands, Attention: The Directors, as purchaser of the Preferred Securities
pursuant to the Purchase Agreement.
“QIB”
means a “qualified institutional buyer” as defined in Rule 144A under the
Securities Act.
“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, with respect to any Trust Security, the Liquidation Amount of such
Trust Security, plus accumulated and unpaid Distributions to the Redemption
Date, plus the related amount of the premium, if any, paid by the Depositor
upon
the concurrent redemption or payment at maturity of a Like Amount of
Notes.
“Reference
Banks” has the meaning specified in
Schedule
A
.
“Responsible
Officer” means, with respect to the Property Trustee, any Senior Vice President,
any Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any other officer in the Corporate Trust Office
of
the Property Trustee with direct responsibility for the administration of
this
Trust Agreement and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is
referred because of that officer’s knowledge of and familiarity with the
particular subject.
“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
Event Redemption Price” has the meaning specified in
Section
11.2
of the
Indenture.
“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 “NorthStar Realty Finance Trust V,”
which was created on July 26, 2006, 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, including all
Schedules and Exhibits (other than Exhibit D), as the same may be modified,
amended or supplemented from time to time in accordance with the applicable
provisions hereof.
“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 “NorthStar Realty Finance Trust V,” 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 Rodney Square
North,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Capital Markets, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders, the Depositor, the
Guarantor, the Property Trustee and the Administrative Trustees. The principal
executive office of the Trust is c/o NorthStar Realty Finance Corp., 527
Madison
Avenue, New York, NY 10022, Attention: Chief Financial Officer, 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 (or, in
the
case of the Property Trustee, to the actual knowledge of a Responsible Officer
would 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 (or, in the case of the Property Trustee,
to the actual knowledge of a Responsible Officer 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
(or,
in the case of the Property Trustee, to the actual knowledge of a Responsible
Officer 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,
authority and authorization 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, documents, instruments, certificates and other writings
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 subscription agreement and to cause
the
Trust to perform under the 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 successor Paying Agent and Calculation Agent in accordance
with
this Trust Agreement;
(F)
execution
and delivery 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;
(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 and other writings 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, authority and
authorization 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
receipt 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 and the preparation, execution and filing of the
certificate of cancellation of the Trust with the Secretary of State of the
State of Delaware;
(I)
application
for a taxpayer identification number for the Trust;
(J)
the
authentication of the Preferred Securities as provided in this Trust Agreement;
and
(K)
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 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 this connection, 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.
P
AYMENT
A
CCOUNT
;
P
AYING
A
GENTS
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
Property Trustee is appointed as the initial Paying Agent and hereby accepts
such appointment. 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.
D
ISTRIBUTIONS
;
R
EDEMPTION
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 August 1, 2006, and, except as provided
in
clause (ii) below, shall be payable quarterly in arrears on March 30
th
,
June
30
th
,
September 30
th
and
December 30
th
of each
year, commencing on September 30, 2006. 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 variable rate per
annum, reset quarterly, equal to LIBOR plus 2.70% 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 Distribution period shall be computed
and paid 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. 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 Paying Agent to determine its duties and liabilities with respect to
any
taxes or other charges that it may be required to pay, deduct or withhold
in
respect of such Trust Securities.
SECTION
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 Liquidation 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 September 30, 2011, in
whole or in part, from time to time at a redemption price equal to one hundred
percent (100%) of the principal amount thereof, together, in the case of
any
such redemption, with accrued interest, including any Additional Interest,
to
but excluding the date fixed for redemption (the “Indenture Redemption Price”).
The Notes may also be redeemed by the Depositor, at its option, in whole
but not
in part, upon the occurrence of an Investment Company Event or a Tax Event
at
the Special Event Redemption Price (as set forth in the Indenture).
(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 either by the Trust or by the
Depositor or the Guarantor pursuant to the Indenture, 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, however, 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.
(a)
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
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 (i) shall be exercisable effective on any
Distribution Date by such Depositor Affiliate delivering to the Property
Trustee
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 (ii) 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 three-month U.S. dollar deposits in Europe 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
and dollar amount (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 Property Trustee, each Paying Agent and the
Depositary. The Calculation Agent will also specify to the Administrative
Trustees 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)
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 thirty million dollars ($30,000,000) and
one
series of Common Securities having an aggregate Liquidation Amount of one
hundred thousand dollars ($100,000).
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 100 Common Securities having
an aggregate Liquidation Amount of one hundred thousand dollars ($100,000),
against receipt by the Trust of the aggregate purchase price of such Common
Securities of one hundred thousand dollars ($100,000). Contemporaneously
therewith and with the sale by the Trust to the Holders of an aggregate of
thirty thousand (30,000) Preferred Securities having an aggregate Liquidation
Amount of thirty million dollars ($30,000,000), an Administrative Trustee,
on
behalf of the Trust, shall subscribe for and 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 thirty million one hundred
thousand dollars ($30,100,000), 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 thirty million one hundred thousand dollars ($30,100,000)
(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
one hundred thousand dollars ($100,000) Liquidation Amount and integral
multiples of one thousand dollars ($1,000) in excess thereof, and the Common
Securities Certificates shall be issued in minimum denominations of ten thousand
dollars ($10,000) Liquidation Amount and integral multiples of one thousand
dollars ($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)
Preferred
Securities issued on the Closing Date to QIBS shall be issued as directed
by the
Purchaser on or prior to the Closing Date, either (i) in the form of one
or more
Global Preferred Securities Certificates or (ii) in the form of one or more
Definitive Preferred Securities Certificates. Global Preferred Securities
shall
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 the Property Trustee as 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 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 a Responsible Officer 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 and deliver
one
or more Preferred Security Certificates evidencing 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
.
(e)
Upon
issuance of the Trust Securities as provided in this Trust Agreement, the
Trust
Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable, and each Holder thereof shall be entitled to the benefits
provided by this Trust Agreement.
SECTION
5.5.
Rights
of
Holders.
The
Trust
Securities shall have no, and the issuance of the Trust Securities is not
subject to, 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.
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, 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 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, and the Property Trustee,
upon receipt thereof, shall authenticate and deliver such Definitive Preferred
Securities Certificates. 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
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 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
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 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 upon receipt thereof 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 upon receipt
thereof 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
(i) if such Preferred Securities Certificate is being transferred otherwise
than
to a QIB, accompanied by a certificate of the transferee substantially in
the
form set forth as
Exhibit
E
hereto
or (ii) if such Preferred Securities Certificate is being transferred to
a QIB,
accompanied by a certificate of the transferor substantially in the form
set
forth as
Exhibit
F
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.
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 and the Administrative Trustees to save each of them
harmless, 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
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 and the Administrative Trustees such
security or indemnity as may be required by them to save each of them 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,
instead
of issuing a new Trust Security, pay such Trust Security.
(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.
(g)
With
respect to Preferred Securities issued to QIBs in the form of one or more
Definitive Preferred Securities Certificates as provided in Section 5.4(c),
and
any subsequent transfers thereof, the Depositor and the Trust shall use all
commercially reasonable efforts to make such Preferred Securities eligible
for
clearance and settlement as Book-Entry Preferred Securities through the
facilities of the Depositary and listed for trading through the PORTAL Market,
and will execute, deliver and comply with all representations made to, and
agreements with, the Depositary and the PORTAL Market in connection
therewith.
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 the Trust Securities evidenced by 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 disposed of by the Property Trustee in
accordance with its customary practices and the Property Trustee shall deliver
to the Administrative Trustees a certificate of such disposition.
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 herein 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 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
NORTHSTAR REALTY FINANCE TRUST V
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, (II)
TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE
REQUIREMENTS OF RULE 144A, OR (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR
THE ACCOUNT OF AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)
(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND, IN THE CASE OF (III), SUBJECT TO THE RIGHT OF
THE
TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL ADDRESSING COMPLIANCE
WITH THE U.S. SECURITIES LAWS, AND OTHER INFORMATION SATISFACTORY TO EACH
OF
THEM 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
LIQUIDATION AMOUNT OF OR DISTRIBUTIONS 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
PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN
ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON
INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS PREFERRED SECURITY
OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR
THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY, OR ANY INTEREST THEREIN,
ARE NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH
RESPECT TO SUCH PURCHASE AND HOLDING. 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 EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN
OR OTHER PLAN TO WHICH TITLE I OF ERISA OR SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE “PLAN ASSETS” OF
ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii)
SUCH
PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTIVE RELIEF
IS NOT
AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
(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 or violation of 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 authenticate and 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
represents Preferred Securities referred to in the within-mentioned Trust
Agreement.
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WILMINGTON
TRUST
COMPANY
,
not in its individual capacity, but solely as Property
Trustee
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Dated:
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By:
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Authorized
officer
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ARTICLE
VI.
M
EETINGS
;
V
OTING
;
A
CTS
OF
H
OLDERS
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
11.8
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, (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 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 or the Guarantor, 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 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
and
subject to paragraph (c), 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 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.
R
EPRESENTATIONS
AND
W
ARRANTIES
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,
the
Guarantor and the Holders that:
(a)
the
Property Trustee is a Delaware banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of the State
of
Delaware;
(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 Delaware banking corporation, duly organized with trust
powers, validly existing and in good standing under the laws of the State
of
Delaware and with its principal place of business in the State of
Delaware;
(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 and similar laws affecting creditors’ rights generally
and to general principles of equity and the discretion of the court (regardless
of whether considered in a proceeding in equity or at law);
(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 Charter or By-laws
of the Property Trustee or the Delaware Trustee or (ii) 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 and trust 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 and trust 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 and similar laws affecting
creditors’ rights generally and to general principles of 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 action on the part of the Depositor and do not
require any approval of equity owners 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; and
(g)
there
are
no proceedings pending or, to the best of 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 five (5), provided, that the Property Trustee
and
the Delaware Trustee may be the same Person, in which case the number of
Trustees shall be four (4). 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
.
(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
.
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, the Guarantor 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; 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, the Guarantor 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, the Guarantor or the
Depositor.
SECTION
8.6.
Notices
of Defaults and Extensions.
(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, the Guarantor and the Depositor,
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 (including any Additional Interest) on any Trust Security, the Property
Trustee shall be fully protected in withholding such 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 Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Trust Securities. 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)
RESERVED.
(c)
The
Property Trustee shall not be deemed to have knowledge of any default or
Event
of Default unless the Property Trustee shall have received written notice
thereof from the Depositor, the Guarantor, any Administrative Trustee or
any
Holder or unless a Responsible Officer of the Property Trustee shall have
obtained actual knowledge of such default or Event of Default.
(d)
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 or the Guarantor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officer’s 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 the Guarantor or any of the Depositor’s or
the Guarantor’s 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;
(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 to examine the books, records and
premises of the Depositor, personally or by agent or attorney;
(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 Officer’s 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 or otherwise, delegate to any other Person
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
a 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 (including in its individual capacity), (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 reasonable 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 or Issuance of Securities.
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.
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 and from the Property Trustee.
(a)
The
Depositor, the Guarantor 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 the Guarantor and not
later
than ninety (90) days after the end of each fiscal year of the Depositor
and the
Guarantor ending after the date of this Trust Agreement, an Officer’s
Certificate (substantially in the form attached hereto as
Exhibit
H
)
covering the preceding fiscal period, stating whether or not to the knowledge
of
the signers thereof the Depositor, the Guarantor, the Administrative Trustees
or
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,
the
Guarantor, the Administrative Trustees 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 and the Guarantor shall furnish to (i) the Property Trustee, (ii)
the
Purchaser, (iii) any Owner of the Preferred Securities reasonably identified
to
the Depositor, the Guarantor or the Trust (which identification may be made
either by such Owner or by the Purchaser) and (iv) any designee of (i), (ii)
or
(iii) above, a duly completed and executed certificate in the form attached
hereto as Exhibit G, including the financial statements referenced in such
Exhibit, which certificate and financial statements shall be so furnished
by the
Depositor and the Guarantor 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
the Guarantor and not later than ninety (90) days after the end of each fiscal
year of the Depositor and the Guarantor.
(c)
The
Property Trustee shall receive all reports, certificates and information,
which
it is entitled to obtain under each of the Operative Documents, and deliver
to
(i) the Purchaser, or a designee thereof, as identified in writing to the
Property Trustee, copies of all such reports, certificates or information
promptly upon receipt thereof.
ARTICLE
IX.
T
ERMINATION
,
L
IQUIDATION
AND
M
ERGER
SECTION
9.1.
Dissolution
Upon Expiration Date.
Unless
earlier dissolved, the Trust shall automatically dissolve on September 30,
2041
(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 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)
the
Preferred Securities are listed, or 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 and guarantees the obligations of such successor entity
under
the Successor Securities at least to the extent provided by the
Indenture.
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.
ARTICLE
X.
I
NFORMATION
TO
P
URCHASER
SECTION
10.1.
Depositor
Obligations to Purchaser.
Notwithstanding
any other provision herein, the Depositor and the Guarantor shall furnish
to (a)
the Purchaser, (b) any Owner of the Preferred Securities reasonably identified
to the Depositor, the Guarantor, or the Trust (which identification may be
made
either by such Owner or by the Purchaser) and (c) any designee of (a) or
(b)
above, copies of all correspondence, notices, forms, filings, reports and
other
documents required to be provided by the Depositor or the Guarantor, whether
acting through an Administrative Trustee or otherwise, to the Property Trustee
or Delaware Trustee under this Trust Agreement.
SECTION
10.2.
Property
Trustee’s Obligations to Purchaser.
Notwithstanding
any other provision herein, the Property Trustee shall furnish to the Purchaser,
and any a designee thereof as identified in writing to the Property Trustee,
copies of all (i) correspondence, notices, forms, filings, reports and other
documents received by the Property Trustee or Delaware Trustee from the
Depositor, whether acting through an Administrative Trustee or otherwise,
under
this Trust Agreement, and (ii) all correspondence, notices, forms, filings,
reports and other documents required to be provided to the Depositor or a
Holder
by the Property Trustee or Delaware Trustee under this Trust
Agreement.
ARTICLE
XI.
M
ISCELLANEOUS
P
ROVISIONS
SECTION
11.1.
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
11.2.
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.
SECTION
11.3.
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
11.3(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
11.3(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 Officer’s
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
11.4.
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
11.5.
Governing
Law.
THIS
TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE
TRUST, THE DEPOSITOR, THE GUARANTOR 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
11.6.
Successors.
This
Trust Agreement shall be binding upon and shall inure to the benefit of any
successor to the Depositor, the Guarantor, 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
11.7.
Headings.
The
Article and Section headings are for convenience only and shall not affect
the
construction of this Trust Agreement.
SECTION
11.8.
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, the Depositor or the Guarantor 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; (b) in
the case of the Holder of all the Common Securities or the Depositor, to
NorthStar Realty Finance Limited Partnership c/o NorthStar Realty Finance
Corp.,
527 Madison Avenue, New York, NY 10022, Attention: Chief Financial Officer,
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; and (c) in the case of the Guarantor, to NorthStar Realty Finance
Corp., 527 Madison Avenue, New York, NY 10022, Attention: Chief Financial
Officer, or to such other address as may be specified in a written notice
by the
Guarantor to the Property Trustee. Such report, notice, demand or other
communication to or upon a Holder, the Depositor or the Guarantor 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: (a) with respect to the Property Trustee and the Delaware Trustee
to
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Capital Markets, facsimile
no. (302) 636-4140; (b) with respect to the Administrative Trustees, to them
at
the address above for notices to the Depositor, marked “Attention:
Administrative Trustees of NorthStar Realty Finance Trust V,” and (c) 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
11.9.
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
11.9
,
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.
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. Delivery of an executed
signature page of this instrument my facsimile transmission shall be effective
as delivery of a manually executed counterpart hereof.
[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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N
ORTH
S
TAR
R
EALTY
F
INANCE
L
IMITED
P
ARTNERSHIP
,
as
Depositor
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By:
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/s/ Albert
Tylis
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Name:
Albert Tylis
Title:
General Counsel
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N
ORTH
S
TAR
R
EALTY
F
INANCE
C
ORP
.
,
as
Guarantor
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By:
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/s/ Albert
Tylis
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Name:
Albert
Tylis
Title:
General Counsel
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Wilmington
Trust Company, as Property Trustee
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Wilmington
Trust Company, as Delaware Trustee
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By:
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/s/
Christopher
J. Slaybaugh
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By:
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/s/
Christopher
J. Slaybaugh
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Name:
Senior
Financial Services Officer
Title:
Christopher J. Slaybaugh
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Name:
Senior
Financial Services Officer
Title:
Christopher J. Slaybaugh
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/s/ David Hamamoto
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/s/ Andrew Richardson
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Administrative
Trustee
Name:
David Hamamoto
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Administrative
Trustee
Name:
Andrew Richardson
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/s/ Richard McCready
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Administrative
Trustee
Name:
Richard McCready
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