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 March 10, 2006
between
NORTHSTAR
REALTY FINANCE LIMITED PARTNERSHIP,
as
Issuer,
NORTHSTAR
REALTY FINANCE CORP.,
as
Guarantor,
and
WILMINGTON
TRUST COMPANY
as
Trustee
_____________________
Dated
as
of March 10, 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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11
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SECTION
1.4.
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Acts
of Holders.
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12
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SECTION
1.5.
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Notices,
Etc.
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13
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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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15
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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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15
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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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-i-
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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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37
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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 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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-ii-
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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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47
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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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Holder’s
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.
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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
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SECTION
8.1.
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Company
and Guarantor May Consolidate, Etc., Only on Certain
Terms.
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51
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SECTION
8.2.
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Successor
Company or Guarantor Substituted.
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52
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ARTICLE
IX
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Supplemental
Indentures
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SECTION
9.1.
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Supplemental
Indentures without Consent of Holders.
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53
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SECTION
9.2.
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Supplemental
Indentures with Consent of Holders.
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53
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SECTION
9.3.
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Execution
of Supplemental Indentures.
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54
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SECTION
9.4.
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Effect
of Supplemental Indentures.
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55
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SECTION
9.5.
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Reference
in Securities to Supplemental Indentures.
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55
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ARTICLE
X
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Covenants
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SECTION
10.1.
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Payment
of Principal, Premium and Interest.
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55
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SECTION
10.2.
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Money
for Security Payments to be Held in Trust.
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55
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SECTION
10.3.
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Statement
as to Compliance.
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56
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-iii-
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SECTION
10.4.
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Calculation
Agent.
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57
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SECTION
10.5.
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Additional
Tax Sums.
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57
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SECTION
10.6.
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Additional
Covenants.
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58
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SECTION
10.7.
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Waiver
of Covenants.
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59
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SECTION
10.8.
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Treatment
of Securities.
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59
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ARTICLE
XI
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Redemption
of Securities
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SECTION
11.1.
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Optional
Redemption.
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60
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SECTION
11.2.
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Special
Event Redemption.
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60
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SECTION
11.3.
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Election
to Redeem; Notice to Trustee.
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60
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SECTION
11.4.
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Selection
of Securities to be Redeemed.
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60
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SECTION
11.5.
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Notice
of Redemption.
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61
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SECTION
11.6.
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Deposit
of Redemption Price.
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62
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SECTION
11.7.
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Payment
of Securities Called for Redemption.
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62
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ARTICLE
XII
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Subordination
of Securities
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SECTION
12.1.
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Securities
Subordinate to Senior Debt of the Company.
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62
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SECTION
12.2.
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No
Payment When Senior Debt of the Company in Default; Payment Over
of
Proceeds Upon Dissolution, Etc.
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63
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SECTION
12.3.
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Payment
Permitted If No Default.
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64
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SECTION
12.4.
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Subrogation
to Rights of Holders of Senior Debt of the Company.
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64
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SECTION
12.5.
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Provisions
Solely to Define Relative Rights.
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65
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SECTION
12.6.
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Trustee
to Effectuate Subordination.
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65
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SECTION
12.7.
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No
Waiver of Subordination Provisions.
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65
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SECTION
12.8.
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Notice
to Trustee.
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66
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SECTION
12.9.
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Reliance
on Judicial Order or Certificate of Liquidating Agent.
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67
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SECTION
12.10.
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Trustee
Not Fiduciary for Holders of Senior Debt of the Company.
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67
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SECTION
12.11.
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Rights
of Trustee as Holder of Senior Debt of the Company; Preservation
of
Trustee’s Rights.
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67
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SECTION
12.12.
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Article
Applicable to Paying Agents.
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67
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ARTICLE
XIII
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Guarantee
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SECTION
13.1.
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The
Guarantee.
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68
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-iv-
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SECTION
13.2.
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Guarantee
Unconditional, etc.
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68
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SECTION
13.3.
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Reinstatement.
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69
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SECTION
13.4.
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Subrogation.
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69
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ARTICLE
XIV
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Subordination
of Guarantee
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SECTION
14.1.
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Securities
Subordinate to Senior Debt of the Guarantor.
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69
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SECTION
14.2.
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No
Payment When Senior Debt of the Guarantor in Default; Payment
Over of
Proceeds Upon Dissolution, Etc.
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69
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SECTION
14.3.
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Payment
Permitted If No Default.
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71
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SECTION
14.4.
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Subrogation
to Rights of Holders of Senior Debt of the Guarantor.
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71
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SECTION
14.5.
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Provisions
Solely to Define Relative Rights.
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72
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SECTION
14.6.
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Trustee
to Effectuate Subordination.
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72
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SECTION
14.7.
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No
Waiver of Subordination Provisions.
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72
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SECTION
14.8.
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Notice
to Trustee.
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73
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SECTION
14.9.
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Reliance
on Judicial Order or Certificate of Liquidating Agent.
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73
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SECTION
14.10.
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Trustee
Not Fiduciary for Holders of Senior Debt of the Guarantor.
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74
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SECTION
14.11.
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Rights
of Trustee as Holder of Senior Debt of the Guarantor; Preservation
of
Trustee’s Rights.
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74
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SECTION
14.12.
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Article
Applicable to Paying Agents.
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74
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SCHEDULES
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Schedule
A
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Determination
of LIBOR
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Exhibit
A
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Form
of Officer’s Certificate
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Exhibit
B
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Form
of Officer’s Certificate pursuant to Section 10.3
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-v-
Junior
Subordinated Indenture,
dated
as of March 10, 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”).
Recitals
of the Company
Whereas,
the
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of its unsecured junior subordinated notes (the
“Securities”)
issued
to evidence loans made to the Company of the proceeds from the issuance by
NorthStar Realty Finance Trust IV, 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
Whereas,
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;
1
(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.
“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.
“Additional
Interest”
means
the interest, if any, that shall accrue on any amounts payable on the
Securities, the payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum specified or
determined as specified in such Security, in each case to the extent legally
enforceable.
“Additional
Tax Sums”
has
the
meaning specified in Section
10.5.
“Additional
Taxes”
means
taxes, duties or other governmental charges imposed on the Trust as a result
of
a Tax Event (which, for the sake of clarity, does not include amounts required
to be deducted or withheld by the Trust from payments made by the Trust to
or
for the benefit of the Holder of, or any Person that acquires a beneficial
interest in, the Securities).
“Affiliate”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control,” when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Applicable
Depositary Procedures”
means,
with respect to any transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures of the Depositary for
such
Security, in each case to the extent applicable to such transaction and as
in
effect from time to time.
“Authenticating
Agent”
means
any Person authorized by the Trustee pursuant to Section
6.11
to act
on behalf of the Trustee to authenticate the Securities.
“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.
2
“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 Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, 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).
3
“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.
“XXXXX”
means
the
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
“Equity
Interests”
means
(a) the partnership interests (general or limited) in a partnership, (b) the
membership interests in a limited liability company and (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.
4
“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 30th,
June
30th,
September 30th
and
December 30th
of each
year, commencing on June 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.
5
“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;
6
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.
“Purchasers”
means
AWE, Ltd. and Credit Suisse Securities (USA) LLC, as purchasers 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.
7
“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.
8
“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 and (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,.
“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
June 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.
9
“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;
10
(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.
11
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.
12
(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 (90th)
day
after such record date as the Expiration Date with respect thereto, subject
to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the one
hundred and eightieth (180th)
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:
13
(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., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
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
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attn: Chief Financial Officer,
or
at any other address previously furnished in writing to the Trustee by the
Guarantor, or
(c) the
Purchasers 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 (i)
AWE, Ltd. at c/o Maples Finance Limited, P.O. Box 1093 GT, Queensgate House,
South Church Street, Xxxxxx Town, Grand Cayman, Cayman Islands, Attention:
The
Directors, or any other address previously furnished
by
AWE, Ltd, or (ii) Credit Suisse Securities (USA) LLC, Eleven Xxxxxxx Xxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000,
Attention: The CDO Group, or any other address previously furnished by Credit
Suisse Securities (USA) LLC.
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.
14
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.
15
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 _______________, 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 June 30, 2036. The Company further promises to pay interest on
said principal sum from March 10, 2006, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly in arrears
on March
30th,
June
30th,
September 30th
and
December 30th
of each
year, commencing on June 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 fixed rate per
annum equal to 7.95% through the Interest Payment Date in June, 2016, and a
variable rate per annum, reset quarterly, equal to LIBOR plus 2.80% thereafter,
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 fixed rate per
annum
equal to 7.95% through the Interest Payment Date in June, 2016, and a variable
rate per annum, reset quarterly, equal to LIBOR plus 2.80% thereafter,
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.
16
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.
17
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 March 10, 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 March 10, 2006 (as modified, amended
or
supplemented from time to time, the “Trust
Agreement”),
relating to NorthStar Realty Finance Trust IV (the “Trust”),
among
the Company, as Depositor, the trustees named therein and the holders from
time
to time of the Trust Securities issued pursuant thereto, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may
be.
The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to
the
Trustee) on or after June 30, 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.
18
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.
19
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.
| NorthStar Realty Finance Limited Partnership |
| By: | NorthStar Realty Finance Corp., its General Partner | |
| |
|
|
| By: | ||
|
Name: Title:
|
||
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.
20
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, 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.
21
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.
22
(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.
| Dated: | ||
| WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Trustee | ||
| |
|
|
| By: | ||
|
Authorized
officer
|
||
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.
23
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 fixed rate
per annum equal to 7.95% through the Interest Payment Date in June, 2016, and
a
variable rate per annum, reset quarterly, equal to LIBOR plus 2.80% thereafter,
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 fixed rate per annum equal
to
7.95% through the Interest Payment Date in June, 2016, and a variable rate
per
annum, reset quarterly, equal to LIBOR plus 2.80% thereafter, 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:
24
(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.
25
(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 $50,100,000 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.
26
(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.
27
(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.
28
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
to (i)
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.
29
(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.
30
(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.
31
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;
32
(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
33
(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.
34
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:
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(A)
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all
overdue installments of interest on all Securities,
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|
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(B)
|
any
accrued Additional Interest on all Securities,
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||
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(C)
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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
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(D)
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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
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(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.
35
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.
36
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;
37
(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.
38
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
39
(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.
40
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.
41
(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.
42
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;
43
(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.
44
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.
45
(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.
46
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.
47
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.
48
(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
|
||
| By: | ||
|
Authorized Officer |
||
ARTICLE
VII
Holder’s
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.
49
(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 Purchasers, (iii) any beneficial
owner of the Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or the Purchasers)
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 XXXXX
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 XXXXX 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 Purchasers, or designees thereof, as
identified in writing to the Trustee, all such reports, certificates or
information promptly upon receipt thereof.
50
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;
51
(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.
52
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,
53
(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.
54
SECTION
9.4. Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article
IX,
this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION
9.5. Reference
in Securities to Supplemental Indentures.
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article
IX
may, and
shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared
and
executed by the Company and the Guarantor and authenticated and delivered by
the
Trustee in exchange for Outstanding Securities.
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.
55
(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.
56
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 (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.
57
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 Interest) 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 capital stock 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 stock, warrants, options or other rights where the dividend stock or
the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari
passu with
or
junior to such stock).
58
(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.
59
ARTICLE
XI
Redemption
of Securities
SECTION
11.1. Optional
Redemption.
The
Company may, at its option, on any Interest Payment Date, on or after June
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 (100%) percent 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 (103%) percent 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 forty five (45) days
and not more than seventy five (75) days prior to the Redemption Date (unless
a
shorter notice shall be satisfactory to the Trustee), notify the Trustee and
the
Property Trustee under the Trust Agreement in writing of such date and of the
principal amount of the Securities to be redeemed and provide the additional
information required to be included in the notice or notices contemplated by
Section
11.5.
In the
case of any redemption of Securities, in whole or in part, (a) prior to the
expiration of any restriction on such redemption provided in this Indenture
or
the Securities or (b) pursuant to an election of the Company which is subject
to
a condition specified in this Indenture or the Securities, the Company shall
furnish the Trustee with an 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.
60
(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.
61
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.
62
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 any premium and interest (including any Additional Interest) on the
Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any capital
stock or any obligations of the Company ranking junior to the Securities and
such other obligations. If, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities
or
other property (other than securities of the Company or any other entity
provided for by a plan of reorganization or readjustment the payment of which
is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment
of
all Senior Debt 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.
63
(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.
64
SECTION
12.5. Provisions
Solely to Define Relative Rights.
The
provisions of this Article
XII
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.
65
(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.
66
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.
67
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 Amounts) 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 Amounts) 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.
68
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.
69
(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.
70
(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.
71
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, 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 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.
72
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.
73
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.
*
* *
*
74
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
| NorthStar Realty Finance Limited Partnership, as Issuer | ||
| |
|
|
| By: | NorthStar Realty Finance Corp., its General Partner | |
| By: | /s/ Xxxxxxx X. XxXxxxxx | |
|
Name: Xxxxxxx X. XxXxxxxx
Title: General Counsel
|
||
| NorthStar Realty Finance Corp., as Guarantor | ||
| |
|
|
| By: | /s/ Xxxxxxx X. XxXxxxxx | |
|
Name: Xxxxxxx X. XxXxxxxx
Title: General Counsel
|
||
| WILMINGTON TRUST COMPANY, as Trustee | ||
| |
|
|
| By: | /s/ W. Xxxxxx Xxxxxx, II | |
|
Name: W. Xxxxxx Xxxxxx, II
Title: Assistant Vice
President
|
||
75
