As filed with the Securities and Exchange Commission on May 18, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) May 10, 2000
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CAPITAL TRUST, INC.
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(Exact name of registrant as specified in its charter)
Maryland 1-14788 94-6181186
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
605 Third Avenue, 26th Floor
New York, New York 10016
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(Address of principal executive offices) (Zip Code)
(212) 655-0220
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(Registrant's telephone number, including area code)
(Former name or former address, if changed since last report)
954111.3
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ITEM 5. Other Events
On May 10, 2000, pursuant to a modification agreement between the
Company and the holders thereof, the terms of the $150 million aggregate
liquidation 8.25% step up convertible trust preferred securities (the "Old
Convertible Trust Preferred Securities") issued on July 28, 1998 by the
Company's consolidated Delaware statutory business trust subsidiary, CT
Convertible Trust I (the "Trust"), were modified and the co-investment
agreement, dated as of July 28, 1998, to which the Company and such holders were
parties was terminated as of March 8, 2000.
The Old Convertible Trust Preferred Securities represented an undivided
beneficial interest in the assets of the Trust that consisted solely of the
Company's $154,650,000 aggregate principal amount 8.25% step up convertible
junior subordinated debentures ("Old Convertible Debentures") that were
concurrently issued and sold to the Trust on July 28, 1998.
In connection with the modification, the outstanding Old Convertible
Trust Preferred Securities were cancelled and new variable step up convertible
trust preferred securities with an aggregate liquidation amount of $150,000,000
(the "New Convertible Trust Preferred Securities") were issued to the holders of
the cancelled securities in exchange therefor, and the Old Convertible
Debentures were cancelled and new 8.25% step up convertible junior subordinated
debentures in the aggregate principal amount of $92,524,000 (the "New
Convertible Debentures") and new 13.00% step up non-convertible junior
subordinated debentures in the aggregate principal amount of $62,126,000 (the
"New Non- Convertible Debentures" and together with the New Convertible
Debentures, the "New Debentures") were issued to the Trust, as the holder of the
cancelled bonds, in exchange therefor. The liquidation amount of the New
Convertible Trust Preferred Securities is divided into $89,742,000 of
convertible amount (the "Convertible Amount") and $60,258,000 of non-convertible
amount (the "Non- Convertible Amount"), the distribution, redemption and, as
applicable, conversion terms of which, mirror the interest, redemption and, as
applicable, conversion terms of the New Convertible Debentures and the New
Non-Convertible Debentures, respectively, held by the Trust.
Distributions on the New Convertible Trust Preferred Securities are
payable quarterly in arrears on each calendar quarter-end and correspond to the
payments of interest made on the New Debentures, the sole assets of the Trust.
Distributions are payable only to the extent payments are made in respect of the
New Debentures. The New Convertible Trust Preferred Securities initially bear a
blended coupon rate of 10.16% per annum which rate will vary if and as the
proportion of outstanding Convertible Amount to the outstanding Non-Convertible
Amount changes and will step up in accordance with the coupon rate step up terms
applicable to the Convertible Amount and the Non-Convertible Amount.
The Convertible Amount bears a coupon rate of 8.25% per annum through
March 31, 2002 and increases on April 1, 2002 to the greater of (i) 10.00% per
annum, increasing by 0.75% on October 1, 2004 and on each October 1 thereafter
or (ii) a percentage per annum equal to the quarterly dividend paid on a common
share multiplied by four and divided by $7.00. The Convertible Amount is
convertible into shares of Class A Common Stock, in increments of $1,000 in
liquidation amount, at a reduced conversion price of $7.00 per share. The total
number of shares of Class A Common Stock issuable on conversion of the entire
Convertable Amount is 12,820,272. The Convertible Amount is redeemable by the
Company, in whole or in part, on or after September 30, 2004.
954111.3
<PAGE>
The Non-Convertible Amount bears a coupon rate of 13.00% per annum
through September 30, 2004, increasing by 0.75% on October 1, 2004 and on each
October 1 thereafter. The Non- Convertible Amount is redeemable by the Company,
in whole or in part, at any time.
The modification of the Old Convertible Trust Preferred Securities and
termination of the co- investment agreement followed an agreement-in-principle
with respect to the same that was entered into in connection with that certain
venture agreement, dated as of March 8, 2000, among the Company and certain of
its affiliates and certain affiliates of Citigroup Investments Inc., which was
previously reported and described in the Company's Current Report on Form 8-K,
dated March 8, 2000, as filed with the Securities and Exchange Commission on
March 23, 2000.
The modification and termination transactions were governed by the
following documents, each of which is attached hereto as an exhibit and the full
text of which is incorporated by reference herein:
o Termination Agreement made as of March 8, 2000 between and
among Capital Trust, Inc., Vornado Realty L.P., EOP
Operating Limited Partnership and General Motors
Investment Management Corporation as agent for and for the
benefit of the Pension Plans (as defined therein).
o Modification Agreement, dated as of May 10, 2000, by and
among Capital Trust, Inc., John R. Klopp and Sheli Z.
Rosenberg, as Regular Trustees for CT Convertible Trust I,
Vornado Realty L.P., Vornado Realty Trust, EOP Operating
Limited Partnership, Equity Office Properties Trust, and
State Street Bank and Trust Company, as trustee for
General Motors Employes Global Group Pension Trust.
o Amended and Restated Indenture, dated as of May 10, 2000,
between Capital Trust, Inc. and Wilmington Trust Company.
o Amended and Restated Declaration of Trust, dated and
effective as of May 10, 2000, by the Trustees (as defined
therein), the Sponsor (as defined therein) and by the
holders, from time to time, of undivided beneficial
interests in the Trust.
o Amended and Restated Preferred Securities Guarantee
Agreement, dated as of May 10, 2000, by Capital Trust,
Inc. and Wilmington Trust Company, as trustee, for the
benefit of the Holders (as defined therein) from time to
time of the Preferred Securities (as defined therein) of
CT Convertible Trust I.
o Guarantee Agreement, dated as of May 10, 2000, executed
and delivered by Capital Trust, Inc., for the benefit of
the Holders (as defined therein) from time to time of the
Common Securities (as defined therein) of CT Convertible
Trust I.
954111.3
2
<PAGE>
ITEM 7. Financial Statements, Supplemental Financial Information and Exhibits.
(c) Exhibits.
10.1 Termination Agreement made as of March 8, 2000 between and
among Capital Trust, Inc., Vornado Realty L.P., EOP
Operating Limited Partnership and General Motors Investment
Management Corporation as agent for and for the benefit of
the Pension Plans (as defined therein).
10.2 Modification Agreement, dated as of May 10, 2000, by and
among Capital Trust, Inc., John R. Klopp and Sheli Z.
Rosenberg, as Regular Trustees for CT Convertible Trust I,
Vornado Realty L.P., Vornado Realty Trust, EOP Operating
Limited Partnership, Equity Office Properties Trust, and
State Street Bank and Trust Company, as trustee for General
Motors Employes Global Group Pension Trust.
10.3 Amended and Restated Indenture, dated as of May 10, 2000,
between Capital Trust, Inc. and Wilmington Trust Company.
10.4 Amended and Restated Declaration of Trust, dated and
effective as of May 10, 2000, by the Trustees (as defined
therein), the Sponsor (as defined therein) and by the
holders, from time to time, of undivided beneficial
interests in the Trust.
10.5 Amended and Restated Preferred Securities Guarantee
Agreement, dated as of May 10, 2000, by Capital Trust, Inc.
and Wilmington Trust Company, as trustee, for the benefit of
the Holders (as defined therein) from time to time of the
Preferred Securities (as defined therein) of CT Convertible
Trust I.
10.6 Guarantee Agreement, dated as of May 10, 2000, executed and
delivered by Capital Trust, Inc., for the benefit of the
Holders (as defined therein) from time to time of the Common
Securities (as defined therein) of CT Convertible Trust I.
954111.3
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CAPITAL TRUST, INC.
(Registrant)
Date: May 18, 2000 By: /s/ Edward L. Shugrue III
------------------------------
Name: Edward L. Shugrue III
Title: Chief Financial Officer
954111.3
4
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this "Agreement") is made as of March 8,
2000 between and among Capital Trust, Inc., a Maryland corporation and successor
to Capital Trust, a California business trust ("CT"), Vornado Realty L.P., a
Delaware limited partnership, EOP Operating Limited Partnership, a Delaware
limited partnership, and General Motors Investment Management Corporation, a
Delaware corporation, as agent for and for the benefit of the Pension Plans (as
defined in the Co-Investment Agreement (as defined below)) (collectively, the
"Co- Investors").
Preliminary Statement
A. CT and the Co-Investors are parties to that certain co-
investment agreement, dated as of July 28, 1998 (the "Co-Investment Agreement").
The Co-Investors own the entire liquidation amount of 8.25% step up convertible
trust preferred securities issued by CT's consolidated statutory trust
subsidiary, CT Convertible Trust I ("CT Trust"), a Delaware statutory business
trust (the "Trust Preferred Securities").
B. CT and certain of its affiliates and certain affiliates of
Citigroup Investments Inc., a Delaware corporation, have entered into that
certain venture agreement, dated as of the date hereof (the "Venture
Agreement"), pursuant to which, among other things, the parties thereto will
co-sponsor, commit to invest capital in and manage real estate mezzanine
investment opportunity funds, provided however, that CT and the Co-Investors
enter into this Agreement with respect to the termination of the Co-Investment
Agreement.
C. CT has requested that each of the Co-Investors agree to
terminate the Co-Investment Agreement. The Co-Investors are willing to do so in
consideration of the benefits to CT and its business arising from the Venture
Agreement and the transactions governed thereby and described therein.
D. CT and the Co-Investors desire to terminate the
Co-Investment Agreement as of the date hereof.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, it is agreed as follows:
913048.6
<PAGE>
1. From and after the date hereof (the "Termination Date"),
subject to the conditions set forth herein, and subject to the issuance of
$89,742,000 liquidation amount of step up convertible trust preferred securities
and $60,258,000 of step up non-convertible trust preferred securities by CT
Trust in exchange for the Trust Preferred Securities, the Co-Investment
Agreement is hereby cancelled and terminated and is of no further force or
effect. The parties hereto hereby mutually release each other from all of their
respective obligations and liabilities under the Co-Investment Agreement whether
accrued prior to, or accruing from and after, the Termination Date.
2. Each of the parties has full power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby.
3. This Agreement shall be binding upon the parties hereto,
their affiliates, successors and assigns.
4. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
5. This Agreement may be executed in several counterparts and
all so executed shall constitute one agreement binding on all parties hereto,
notwithstanding that all parties have not signed the original or the same
counterpart, except that no counterpart shall be binding unless a counterpart
has been signed by all parties.
[Remainder of Page Left Blank]
913048.6
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Termination
Agreement as of the date first above written.
CAPITAL TRUST INC.
By: /s/ John R. Klopp
Name: John R. Klopp
Title: Chief Executive Officer
VORNADO REALTY L.P.
By: Vornado Realty Trust, its general
partner
By: /s/ Irwin Goldberg
Name: Irwin Goldberg, Vice President
Title: Chief Financial Officer
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust, its general
partner
By: /s/ Peter B. Kisluk
Name: Peter B. Kisluk
Title: Vice President
GENERAL MOTORS INVESTMENT
MANAGEMENT CORPORATION
By: /s/ Thomas Dobrowski
Name: Thomas Dobrowski
Title: Managing Director
913048.6
MODIFICATION AGREEMENT
MODIFICATION AGREEMENT, dated as of May 10, 2000, by and among
Capital Trust, Inc., a Maryland corporation and successor to Capital Trust, a
California business trust (the "Company"), John R. Klopp and Sheli Z. Rosenberg
(the "Regular Trustees"), as Regular Trustees for CT Convertible Trust I, a
Delaware statutory business trust and consolidated subsidiary of the Company
(the "Trust"), Vornado Realty L.P., a Delaware limited partnership ("VNO"),
Vornado Realty Trust, a Maryland real estate investment trust that has elected
to be treated as a real estate investment trust for federal income tax purposes
("VRT"), EOP Operating Limited Partnership, a Delaware limited partnership
("EOP"), Equity Office Properties Trust, a Maryland real estate investment trust
that has elected to be treated as a real estate investment trust for federal
income tax purposes ("EOPT"), and State Street Bank and Trust Company, as
trustee for General Motors Employes Global Group Pension Trust, a New York trust
and successor to both General Motors Hourly-Rate Employes Pension Trust, a New
York trust, and General Motors Salaried Employes Pension Trust, a New York trust
("GM Trust").
Preliminary Statement
A. VNO, EOP and GM Trust are the holders ("CTP Holders") of an
aggregate of $150,000,000 in liquidation amount of 8.25% step up convertible
trust preferred securities (the "CTP Securities") representing undivided
beneficial interests in the assets of the Trust, which was organized pursuant to
that certain declaration of trust, dated and effective as of July 28, 1998, by
the Company and the Trustees as defined therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust (the
"Declaration"). The Company is the holder (the "CTC Holder",and together with
the CTP Holders, the "Holders") of $4,650,000 in liquidation amount of 8.25%
step up convertible trust common securities (the "CTC Securities," and together
with the CTP Securities, the "Securities") representing undivided beneficial
interests in the assets of the Trust. The Trust holds $154,650,000 in aggregate
principal amount of 8.25% step up convertible junior subordinated debentures due
September 30, 2018 (the "Convertible Debentures") issued pursuant to the
indenture, dated as of July 28, 1998, between the Company and Wilmington Trust
Company (the "Indenture").
B. Pursuant to the Declaration, the distribution rates and
distribution payment dates for the CTP Securities and the CTC Securities
correspond to the interest rates and interest payment dates of the Convertible
Debentures, and the CTP Holders have the power to direct the exercise of the
consent and voting rights of holders of Convertible Debentures in proportion to
the liquidation amount of the CTP Securities held by them.
C. The Company and certain of its affiliates and certain
affiliates of Citigroup Investments Inc., a Delaware corporation, are parties to
that certain venture agreement (the "Venture Agreement"), dated as of March 8,
2000, pursuant to which, among other things, the parties thereto will
co-sponsor, commit to invest capital in and manage real estate mezzanine
investment opportunity funds, provided however, that the parties hereto (i)
enter into a termination agreement that would terminate as of March 8, 2000 that
certain co-investment
915272.17
<PAGE>
agreement, dated as of July 28, 1998, among the parties hereto and (ii) enter
into this Agreement with respect to the proposed amendments to the Indenture and
the Declaration that would modify the terms of the CTP Securities and the CTC
Securities to provide the Company with significantly greater flexibility with
regard to electing to be taxed as a REIT as required in the Venture Agreement.
D. The Company has requested that the CTP Holders provide
their consent, and the Company, as CTC Holder, intends to provide its consent,
to an amendment and restatement of each of the Indenture and the Declaration
that would modify the terms thereof in a manner to provide the Company with the
desired flexibility discussed above. The CTP Holders are willing to do so in
consideration of the benefits to the Company and its business arising from the
Venture Agreement and the transactions governed thereby and the benefits of
certain modifications to the terms of the CTP Securities that are favorable to
the CTP Holders.
Accordingly, the parties hereto agree as follows:
ARTICLE 1
AGREEMENT AND CLOSING
Section 1.1 Agreement. Subject to the conditions contained
herein:
(a) The Company hereby agrees to execute the amended and
restated indenture in the form attached hereto as Exhibit A (the"Amended and
Restated Indenture") and deliver the same to the Trustee as defined in the
Indenture (the "Indenture Trustee") at the Closing.
(b) The Company hereby agrees to issue pursuant to the terms
of the Amended and Restated Indenture, upon execution and delivery thereof by
the parties thereto, to the Declaration Institutional Trustee Debentures (as
defined herein) in the aggregate principal amount of $154,650,000 (the "New
Debentures") against delivery of the Convertible Debentures to the Indenture
Trustee for cancellation.
(c) The Regular Trustees hereby agree to execute the amended
and restated declaration of trust in the form attached hereto as Exhibit B (the
"Amended and Restated Declaration") and to deliver the same to the Institutional
Trustee as defined in the Declaration (the "Declaration Institutional Trustee")
and the Delaware Trustee as defined in the Declaration (the "Declaration
Delaware Trustee") at the Closing.
(d) Each CTP Holder and the Company, as the CTC Holder, hereby
agrees to execute a written direction in the form attached hereto as Exhibit C
(the "Written Direction"), directing the Declaration Institutional Trustee to
execute a written consent to the Amended and Restated Indenture (the "Indenture
Consent") in the form attached hereto as Exhibit D and to deliver such Written
Direction to the Declaration Institutional Trustee at the Closing.
(e) Each CTP Holder and the Company, as the CTC Holder, hereby
agrees to execute a written consent in the form attached hereto as Exhibit E to
the Amended and
915272.17
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<PAGE>
Restated Declaration (the "Declaration Consent") and to deliver the same to the
Declaration Institutional Trustee and the Declaration Delaware Trustee at the
Closing.
(f) The Company shall request the Indenture Trustee to join
the Company in the execution of the Amended and Restated Indenture and, in
connection therewith, shall comply with Sections 8.2, 8.4 and 15.5 of the
Indenture and, without limitation, deliver to the Indenture Trustee at the
Closing:
(i) certified copies of resolutions of the board of
directors of the Company, in the form attached hereto as Exhibit F (the
"Indenture Resolutions"), authorizing the execution of the Amended and
Restated Indenture;
(ii) an officers' certificate in the form attached
hereto as Exhibit G (the "Indenture Officers' Certificate"); and
(iii) an opinion of counsel in the form attached
hereto as Exhibit H (the "Opinion of Counsel");
and take any and all action on its part necessary to accomplish the same.
(g) The Regular Trustees shall request the Declaration
Institutional Trustee and the Declaration Delaware Trustee to join the Regular
Trustees in the execution of the Amended and Restated Declaration and, in
connection therewith, shall comply with Sections 3.7(a)(vii), 3.10(a) and 12.1
of the Declaration and Section 8(b) of Annex I to the Declaration and, without
limitation, deliver to the Declaration Institutional Trustee, the Declaration
Delaware Trustee and, as required, the Trust at the Closing:
(i) an officers' certificate, signed by two officers
of the Company, in the form attached hereto as Exhibit I (the
"Declaration Company Officers' Certificate");
(ii) an officers' certificate, signed by the Regular
Trustees, in the form attached hereto as Exhibit J (the "Declaration
Trust Officers' Certificate");
(iii) the Opinion of Counsel;
and take any and all action on their part necessary to accomplish the same.
(h) The Regular Trustees shall request the Declaration
Institutional Trustee as the holder of the Convertible Debentures to (i) consent
to the Amended and Restated Indenture and, in connection therewith, shall comply
with Section 3.7(a)(vii) of the Declaration and Section 8(b) of Annex I to the
Declaration and, without limitation, deliver to the Declaration Institutional
Trustee and the Trust at the Closing an opinion of tax counsel in the form
attached hereto as Exhibit K (the "Tax Opinion") and (ii) deliver at the Closing
to the Indenture Trustee for cancellation the Convertible Debentures against
delivery of the New Debentures issued to it in accordance with the terms hereof.
(i) The Declaration Trustees hereby agree to cause the Trust
to issue, pursuant to the terms of the Amended and Restated Declaration, upon
execution and delivery thereof by the parties thereto at the Closing, (i) to
each CTP Holder Convertible Preferred
915272.17
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<PAGE>
Securities (as defined therein) (the "New CTP Securities") in the aggregate
liquidation amount of $50,000,000 (for a total, to all CTP Holders, of
$150,000,000 in liquidation amount) and (ii) to the Company Common Securities
(as defined therein) in the aggregate liquidation amount of $4,650,000 ("New CTC
Securities").
(j) Each CTP Holder hereby, severally and not jointly, agrees
to deliver at the Closing to the Declaration Institutional Trustee for
cancellation the CTP Securities held by it against delivery of the New CTP
Securities issued to it in accordance with the terms hereof. The Company, as the
CTC Holder, hereby agrees to deliver at the Closing to the Declaration
Institutional Trustee for cancellation the CTC Securities held by it against
delivery of the New CTC Securities issued to it in accordance with the terms
hereof.
(k) The Regular Trustees hereby agree to deliver written
notice of the Amended and Restated Declaration as executed to the Holders in the
form attached hereto as Exhibit L (the "Amended and Restated Declaration
Notice").
(l) The Company hereby agrees to execute and deliver at the
Closing, and to request that Wilmington Trust Company, as trustee, execute and
deliver at the Closing, an amended and restated preferred securities guarantee
agreement for the benefit of the holders, from time to time, of the New CTP
Securities, in the form attached hereto as Exhibit M (the "New Preferred
Securities Guarantee").
(m) The Company hereby agrees to execute and deliver at the
Closing an amended and restated common securities guarantee agreement for the
benefit of the holders, from time to time, of the New CTC Securities, in the
form attached hereto as Exhibit N (the "New Common Securities Guarantee").
Section 1.2 Closing. The execution and delivery of the
documents and the other actions referred to in Section 1.1 (the "Closing") shall
take place at the offices of Battle Fowler LLP, 75 East 55th Street, New York,
New York 10022 at 10:00 a.m. on the date hereof (the "Closing Date").
Section 1.3 Conditions to Closing. (a) The obligation of the
Company and the Trust to close the transactions contemplated hereunder is
subject to the satisfaction on or prior to the Closing of the following
conditions:
(i) no order, injunction or decree issued by any
court or agency of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the closing of the
transactions contemplated by this Agreement shall be in effect;
(ii) each of the terms, covenants and conditions of
this Agreement to be complied with and performed by the CTP Holders on
or prior to the Closing shall have been duly complied with and
performed in all material respects, and all documents to be delivered
or actions to be taken by the CTP Holders shall have been delivered or
performed; and
(iii) each of the representations and warranties made
by the CTP Holders herein shall be true and correct in all material
respects as of the Closing Date
915272.17
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<PAGE>
(unless such representation and warranty is made as of a specific date
and then shall be true and correct as of such date).
(b) The obligation of the CTP Holders to close the
transactions contemplated hereunder is subject to the satisfaction on or prior
to the Closing of the following conditions:
(i) no order, injunction or decree issued by any
court or agency of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the closing of the
transactions contemplated by this Agreement shall be in effect;
(ii) each of the terms, covenants and conditions of
this Agreement to be complied with and performed by the Company, in its
capacity as the CTC Holder and otherwise, and the Trust on or prior the
Closing shall have been duly complied with and performed in all
material respects, and all documents to be delivered or actions to be
taken by the Company, in its capacity as the CTC Holder and otherwise,
and the Trust shall have been delivered or performed;
(iii) each of the representations and warranties made
by the Company and the Trust herein shall be true and correct in all
material respects as of the Closing Date (unless such representation
and warranty is made as of a specific date and then shall be true and
correct as of such date);
(iv) the Declaration Institutional Trustee shall have
executed and delivered to the Indenture Trustee the Indenture Consent;
(v) the Indenture Trustee shall have executed and
delivered to the Company the Amended and Restated Indenture;
(vi) the Declaration Institutional Trustee and the
Declaration Delaware Trustee shall have executed and delivered to the
Company the Amended and Restated Declaration;
(vii) the Company and Wilmington Trust Company, as
trustee, shall have executed and delivered to the CTP Holders the New
Preferred Securities Guarantee;
(viii) the Company shall have executed and delivered
to the CTC Holder the New Common Securities Guarantee;
(ix) Richards, Layton and Finger shall have delivered
an opinion, dated the Closing Date, in the form attached hereto as
Exhibit O;
(x) Battle Fowler LLP shall have delivered an
opinion, dated the Closing Date, in the form attached hereto as Exhibit
P; and
(xi) Ballard Spahr Andrews and Ingersoll shall have
delivered an opinion, dated the Closing Date, in the form attached
hereto as Exhibit Q.
915272.17
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<PAGE>
Section 1.4 Closing Deliveries and Actions. At the Closing,
the following deliveries shall be made:
(a) The Company shall deliver to the Institutional Trustee the
Amended and Restated Indenture executed by the Company.
(b) The Regular Trustees shall deliver to the Declaration
Institutional Trustee and the Declaration Delaware Trustee the Amended and
Restated Declaration executed by the Regular Trustees.
(c) Each CTP Holder and the Company, as the CTC Holder, shall
deliver to the Declaration Institutional Trustee a Written Direction executed by
each such CTP Holder and the Company.
(d) Each CTP Holder and the Company, as the CTC Holder, shall
deliver to the Declaration Institutional Trustee and the Declaration Delaware
Trustee a Declaration Consent executed by each such CTP Holder and the Company.
(e) The Company shall deliver to the Indenture Trustee the
Indenture Resolutions, the Indenture Officers' Certificate and the Opinion of
Counsel.
(f) The Regular Trustees shall deliver to the Declaration
Institutional Trustee, the Declaration Delaware Trustee and, as appropriate, the
Trust the Declaration Company Officers' Certificate, the Declaration Trust
Officers' Certificate, the Opinion of Counsel and the Tax Opinion and shall
deliver to each Holder the Amended and Restated Declaration Notice.
(g) The Company shall deliver to the Declaration Institutional
Trustee $154,650,000 aggregate principal amount of New Debentures duly
registered in its name.
(h) The Trust shall deliver $50,000,000 in liquidation amount
of New CTP Securities, duly registered in their respective names, to each CTP
Holder and $4,650,000 in liquidation amount of New CTC Securities duly
registered in its name to the Company.
(i) There shall have been delivered to each CTP Holder the
opinions referred to in Section 1.3(b)(ix), (x) and (xi).
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE TRUST
The Company and the Regular Trustees, jointly and severally,
represent and warrant to the CTP Holders, as of the Closing Date, as follows:
Section 2.1 Existence and Authority of the Company. The
Company is a corporation duly incorporated and validly existing under and by
virtue of the laws of the State of
915272.17
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<PAGE>
Maryland and is in good standing with the State Department of Assessments and
Taxation of Maryland. The Company has the requisite corporate power to execute
and deliver this Agreement, the Amended and Restated Indenture and the Amended
and Restated Declaration and to carry out the terms and conditions hereof and
thereof applicable to it. The Company is duly qualified to transact business and
is in good standing in each jurisdiction in which such qualification is
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the management, assets,
business, business prospects, earnings or condition (financial or otherwise) of
the Company. The execution, delivery and performance by the Company of this
Agreement, the Amended and Restated Indenture and the Amended and Restated
Declaration have been duly authorized by all necessary corporate action on the
part of the Company. This Agreement has been duly executed and delivered, and
the Amended and Restated Indenture and the Amended and Restated Declaration,
when delivered to the Indenture Trustee, will have been duly executed, on behalf
of the Company, and assuming due execution of this Agreement by each CTP Holder,
due execution of the Amended and Restated Indenture by the Indenture Trustee,
and due execution of the Amended and Restated Declaration by the Declaration
Institutional Trustee and the Declaration Delaware Trustee, this Agreement
constitutes, and the Amended and Restated Indenture and the Amended and Restated
Declaration will constitute, valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
to the extent that their enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles ("Bankruptcy
Exceptions").
Section 2.2 Existence and Authority of the Trust. The Trust
has been duly created and is validly existing and in good standing as a business
trust under Delaware law with the trust power and authority to own its
properties and to conduct its business and to enter into and perform its
obligations under this Agreement and the Amended and Restated Declaration. The
Trust is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is necessary, except to the extent that
the failure to so qualify or be in good standing would not have a material
adverse effect on the management, assets, business, business prospects, earnings
or condition (financial or otherwise) of the Trust. The Trust is and will, upon
consummation of the transactions contemplated hereby, be classified under
current law for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation. The execution, delivery and
performance of this Agreement and the consummation by the Trust of the
transactions contemplated hereby have been duly authorized by all necessary
proceedings on the part of the Trust. This Agreement has been duly executed and
delivered on behalf of the Trust , and assuming due execution of this Agreement
by each CTP Holder, constitute a valid and legally binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, except to the
extent that their enforceability may be limited by Bankruptcy Exceptions.
Section 2.3 No Consents, Approvals, Violations or Breaches.
Neither the execution and delivery by the Company and the Trust of this
Agreement and the other agreements to be executed and delivered pursuant hereto,
nor the consummation by the Company and the Trust of the transactions
contemplated hereby and thereby, will (i) require any consent, approval,
authorization or permit of, or filing, registration or qualification with or
notification to, any governmental or regulatory authority under any law of the
United States, any state or any political subdivision thereof ("Governmental
Entity"), (ii) violate any statute, law, ordinance, rule or regulation of the
United States, any state or any political subdivision thereof,
915272.17
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<PAGE>
or any judgment, order, writ, decree or injunction applicable to the Company or
the Trust or any of their respective properties or assets or (iii) violate,
conflict with or result in a material breach of any provisions of, or constitute
a material default (or any event which, with or without due notice or lapse of
time, or both, would constitute a material default) under, or result in the
termination of, or accelerate the performance required by, any of the terms,
conditions or provisions of any charter, by-laws, declaration of trust, note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which the Company or the Trust is a party or by
which any of their properties or assets may be bound.
2.4 Private Offering
(a) None of the Company, the Trust, their affiliates (as such
term is defined in Rule 501(b) under the Securities Act for any person or
entity) ("Affiliates"), or any person acting on their or any of their
Affiliates' behalf has engaged, or will engage, in connection with the proposed
amendment and restatement of the Indenture and the Declaration, in any
communication or other form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act of 1933, as amended
(the "Securities Act"). Based in part upon the representations of the CTP
Holders set forth in Section 3.1, the proposed amendment and restatement of the
Indenture and the Declaration in the manner contemplated by this Agreement is
exempt from the registration and prospectus delivery requirements of the
Securities Act, and the New CTP Securities are exempt from registration and
qualification under the registration, permit or qualification requirements of
all applicable state securities laws.
2.5 Payments Current
(a) The Company has paid to the Trust all interest accrued on
the Convertible Debentures through the date hereof except for accrued interest
to be paid pursuant to Section 5.1 hereof, and the Trust, upon receipt of such
interest payments, has paid to the CTP Holders all distributions accrued on the
CTP Securities through the date hereof except for accrued distributions to be
paid pursuant to Section 5.1 hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE CTP HOLDERS
Section 3.1 Certain Representation and Warranties. Each CTP
Holder, severally and not jointly, represents and warrants to the Company, as of
the Closing, as follows:
(a) It has acquired the CTP Securities and the New CTP
Securities for its own account for investment and not with a view towards the
resale, transfer or distribution thereof, nor with any present intention of
distributing the CTP Securities, but subject, nevertheless, to any requirement
of law that the disposition of such CTP Holder's property shall at all times be
within the CTP Holder's control, and without prejudice to the CTP Holder's right
at all times to sell or otherwise dispose of all or any part of such securities
under a registration under the Securities Act or under an exemption from said
registration available under the Securities Act.
915272.17
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<PAGE>
(b) It has the power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
(c) It has taken all action necessary for the authorization,
execution, delivery, and performance of this Agreement by such CTP Holder and
its obligations hereunder, and, upon execution and delivery by the Company, this
Agreement shall constitute the valid and binding obligations of such CTP Holder,
enforceable against such CTP Holder in accordance with its terms, except as such
enforcement may be limited by Bankruptcy Exceptions.
(d) It has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
amendment to its investment in the Trust and Company as contemplated by this
Agreement, and is able to bear the economic risk of such investment for an
indefinite period of time. It has been furnished access to such information and
documents as it has requested and has been afforded an opportunity to ask
questions of and receive answers from representatives of the Company and the
Trust concerning the terms and conditions of this Agreement and the proposed
amendments to the Indenture and Declaration contemplated hereby and the business
and financial condition of the Company and the Trust.
(e) It is an "accredited investor" as such term is defined in
Rule 501 under the Securities Act.
(g) It acknowledges that the CTP Securities and the New CTP
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States, except pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the
Securities Act. It has not offered or sold, and will not offer or sell, the New
CTP Securities as amended pursuant hereto within the United States, except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
ARTICLE 4
FURTHER ASSURANCES
Section 4.1 Further Assurances.
------------------
(a) Each party to this Agreement shall, at the request of
another party to this Agreement, at any time and from time to time following the
Closing hereunder, execute and de liver or cause to be executed and delivered
all such further instruments and take or cause to be taken all such further
action as may be reasonably necessary or appropriate in order to more
effectively carry out the provisions of this Agreement.
(b) Each of the CTP Holders shall, at the request of the
Company, at any time and from time to time following the Closing hereunder,
execute and deliver or cause to be executed and delivered all such further
instruments and take or cause to be taken all such action to further amend or
modify the Amended and Restated Declaration and the Amended and Restated
Indenture in such a manner as to eliminate any impediments to the Company's
ability to be taxed as a real estate investment trust ("REIT") under Section 857
of the Internal
915272.17
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<PAGE>
Revenue Code of 1986, as amended (the "Code"), provided that such amendment(s)
or modification(s) do not adversely affect or impair the economic value of the
New CTP Securities (including the liquidity of such securities) held by such CTP
Holder; it being further agreed that a change in tax status to being taxed as a
REIT in and of itself shall not be deemed to impair the economic value of the
New CTP Securities in any manner. Notwithstanding the foregoing, none of GM
Trust, VNO or EOP shall be obligated in any manner (i) in the case of GM Trust,
to monitor or advise the Company as to whether GM Trust, or any entity in which
GM Trust is a direct or indirect owner, is a tenant, leaseholder or occupant of
any real property owned by the Company or is providing services to any such
tenant, leaseholder or occupant or to change GM Trust's ownership in any such
entity in any manner, and (ii) in the case of VNO and EOP, to monitor or advise
the Company as to whether VNO or EOP, or any entity of which either VNO or EOP
is a direct or indirect owner, or any entity which is a direct or indirect owner
of VNO or EOP, is a tenant, leaseholder, or occupant of any real property owned
by the Company or is providing services to any such tenant, leaseholder or
occupant or to change the ownership of VNO or EOP of any such entity or the
ownership of any such entity of VNO or EOP in any manner. Further, it is
understood that any changes to any charter or other organizational document
necessary to avoid becoming a "pension-held REIT" as defined in Section
856(h)(3)(D) of the Code pursuant to Section 5.3 hereof shall not be considered
in any manner to affect the economic value of the New CTP Securities (including
the liquidity of such securities) provided that such changes to the charter or
other organizational document do not void any equity ownership in the Company or
right to acquire equity ownership in the Company upon conversion of the CTP
Holders' New CTP Securities or limit any interest that any CTP Holder has in
equity ownership in the Company acquired or acquirable on conversion of such CTP
Holder's New CTP Securities including, without limitation, the right to vote,
the right to distributions and the right of appreciation in value with respect
to such equity ownership.
ARTICLE 5
ADDITIONAL AGREEMENTS
Section 5.1 Accrued Distributions. The Company agrees to pay
on June 30, 2000 to the Trust the interest accrued on the Convertible Debentures
from April 1, 2000 to but not including the date hereof, and upon receipt
thereof, the Trust agrees to pay on June 30, 2000 to each of the Holders the
distributions accrued on their Securities from April 1, 2000 to but not
including the date hereof.
Section 5.2 VNO and EOP.
(a) The Company represents to VNO and its affiliates,
including VRT, and to EOP and its affiliates, including EOPT, that the Company's
board of directors has twelve members and the Company covenants, for the benefit
of VNO and its affiliates, including VRT, and of EOP and its affiliates,
including EOPT, that the number of seats on the Company's board of directors
will not be decreased without the prior written consent of VNO and EOP and that
any vacancy on the Company's board of directors will be filled in the ordinary
course pursuant to the Company's charter and by-laws.
(b) The Company covenants to VNO and its affiliates, including
VRT, and to EOP and its affiliates, including EOPT, that promptly upon request
by VRT or EOPT, or both of
915272.17
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<PAGE>
them made at any time after December 31, 2000 it will make a joint taxable REIT
subsidiary election (a "TRS" election) under Section 856(l) of the Code with
VRT, in the case of a request by VRT, and/or with EOPT, in the case of a request
by EOPT; provided, however, that:
(i) the Company shall not be required to make a TRS
election, and VRT and EOPT, as the case may be, covenant that promptly
upon request by the Company, they will join with the Company in
revoking any previously made TRS election if the New CTP Securities
owned by VRT or EOPT, as the case may be, represent less than 8% of the
total voting power and value of the Company for purposes of clause
(iii) of Section 856(c)(4)(B) of the Code;
(ii) in the event that the Internal Revenue Service
takes the position that a TRS may not elect REIT status, then at such
time as the Company determines that it will either merge into or
otherwise combine with an existing REIT or elect REIT status at such
time as the Company is not prohibited by Section 856(g) of the Code
from electing REIT status, VRT and EOPT, as the case may be, covenant
that promptly upon request by the Company, they will join with the
Company in revoking any previously made TRS election (such revocation
to be made at the time requested by the Company that will enable it to
merge or otherwise combine with an existing REIT or reelect REIT
status); provided however, that, if the Company fails to qualify as a
REIT or otherwise is no longer taxed as a REIT, the Company shall again
be subject to the covenant to make a TRS election contained in
subsection 5.2(b) hereof; and
(iii) if at any time it appears, based on a TRS
election and on the Company's business plan for its current or next
subsequent tax year, that the Company will be prohibited by Section
163(j) of the Code from taking an interest deduction for all or a
portion of the interest to be paid by the Company to VRT or EOPT, as
the case may be, in that year, or that the Company will otherwise
suffer an actual economic loss from such election (except as a result
of the covenants contained in subsection (c) of this Section), then VRT
and EOPT, as the case may be, covenant that promptly upon request by
the Company, they will join with the Company in revoking any previously
made TRS election; provided further, however, that VRT and EOPT as the
case may be shall not be required to join with the Company in revoking
any previously made TRS election, and the Company shall not revoke such
election, if VRT and EOPT agree to compensate the Company fully on an
after tax basis for the value of the lost deduction for interest paid
to them or compensate the Company fully for such economic loss.
(c) The Company covenants that it will not, directly or
indirectly, operate or manage a lodging facility or health care facility, or
provide to any person (under a franchise, license or otherwise) rights to any
brand name under which any lodging facility or health care facility is operated
at any time during any taxable year in which the Company has a TRS election
outstanding with respect to VRT or EOPT. Terms used in this Section have the
same meanings as when used in Section 856(l) of the Code or any successor
provision.
(d) The Company covenants that it shall provide VRT and EOPT
with such information as either of them shall reasonably request about the
capital structure, assets or activities of the Company in connection with
evaluating the effect of their investment in the New CTP Securities on their
REIT.
915272.17
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<PAGE>
(e) VRT and its affiliates and EOPT and its affiliates are
intended third party beneficiaries of the representations, covenants and
agreements of the Company set forth in this Section 5.2.
Section 5.3 GM Trust. The Company hereby agrees that without
the prior written consent of GM Trust, it shall not elect to become or
consummate a transaction in which the Company or any successor is or becomes
taxed as a REIT unless upon consummation of such election or transaction (i) the
Company or any such successor would not be or become a "pension-held REIT" as
defined in Section 856(h)(3)(D) of the Code, (ii) the Company or any such
successor shall have included in, or shall have amended to include in, its
charter or other organizational document provisions thereof that are
specifically intended to prevent the Company or any such successor from becoming
a "pension-held REIT" as defined in Section 856(h)(3)(D) of the Code and (iii)
the Company's charter or other organizational document does not void any equity
ownership in the Company or right to acquire equity ownership in the Company
upon conversion of GM Trust's New CTP Securities or limit any interest that GM
Trust has in equity ownership in the Company acquired or acquirable on
conversion of GM Trust's New CTP Securities including, without limitation, the
right to vote, the right to distributions and the right of appreciation in value
with respect to such equity ownership.
Section 5.4 Notice of Ownership Increases; Requested Ownership
Percentage; Irrevocable Proxy.
(a) Certain Corporation Actions. In the event that the Company
decides to undertake an action (such as redeeming a portion of its outstanding
capital stock) that causes an increase in the percentage of the Company's
outstanding voting capital stock or in the percentage of the value of all voting
and non-voting stock (determined after giving effect to the exercise or
conversion of all options, warrants and convertible securities owned by EOP and
its affiliates or VNO and its affiliates, as applicable, including Trust
securities) owned by EOP and its affiliates, or VNO and its affiliates, as
applicable, the Company shall notify EOP or VNO, as applicable, of such decision
at least ten (10) days prior to such action, which notice shall also state the
notice recipient's percentage ownership of voting stock and of value (as so
determined) as shown on the Company's books and records.
(b) Quarterly and Requested Ownership Reports. No later than
ten (10) days prior to the end of each calendar quarter and at any other time
upon the request of EOP or VNO, as applicable, the Company shall provide a
written statement to EOP or VNO, as applicable, setting forth (i) the percentage
of the Company's outstanding voting capital stock and the percentage of the
Company's outstanding value (as determined pursuant to Section 5.4(a)) shown on
the Company's books and records to be owned by EOP and its affiliates or VNO and
its affiliates, as applicable, and (ii) the total number and value of
outstanding shares of capital stock of the Company (separated by class and
series).
(c) Irrevocable Proxy. EOP hereby grants an irrevocable proxy
(subject to the last sentence of this subsection (c)) to the Company to vote or
act by written consent with respect to any and all Excess Shares owned by EOP
from time to time. EOP affirms that the proxy granted hereby is coupled with an
interest and shall be irrevocable. For purposes of this Section 5.4(c), the term
"Excess Shares" shall mean any Company securities owned by EOP and its
affiliates which exceeds 9.9% of the voting power or value of the Company for
purposes
915272.17
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<PAGE>
of clause (iii) of Section 856(c)(4)(B) of the Code. During the effectiveness of
any TRS election or while the Company is a REIT, this subsection (c) shall be of
no force and effect.
Section 5.5 Other. The Company and the Regular Trustees shall
treat the New Debentures as indebtedness for United States federal income tax
purposes.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Assignment. This Agreement may not be assigned by
any party hereto without the prior written consent of each other party. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their successors in interest and permitted assigns.
Section 6.2 Notices. All notices or other communications under
this Agreement shall be sufficient if in writing and delivered by hand or sent
by telecopy, or sent, postage prepaid by registered, certified or express mail,
or by recognized overnight air courier service and shall be deemed given when so
delivered by hand or telecopied, or if mailed or sent by overnight courier
service, on the third (3rd) business day after mailing (one business day in the
case of express mail or overnight courier service) to the parties at the
following addresses:
(a) If to the CTP Holders, to:
Vornado Realty L.P.
c/o Vornado Realty Trust
Park 80 West, Plaza II
Saddle Brook, New Jersey 07663
Attention: Joseph Macnow
Executive Vice President,
Finance and Administration
Facsimile:
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Facsimile: (212) 558-3588
EOP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
Attention: Stanley M. Stevens
Richard D. Kincaid
Facsimile: (312) 559-5021
915272.17
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<PAGE>
with a copy to:
Neal, Gerber & Eisenberg
Two North LaSalle Street, Suite 2200
Chicago, Illinois 60602
Attention: Jonathan Wasserman
Facsimile: (312) 269-1747
State Street Bank and Trust Company, as trustee for
General Motors Employes
Global Group Pension Trust
225 Franklin Street
Boston, Massachusetts 02110
Attention: Michael Connors
Facsimile: (617) 537-6584
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Gerald S. Backman, P.C.
Facsimile: (212) 310-8007
(b) If to the Company, to:
Capital Trust, Inc.
605 Third Avenue
26th Floor
New York, NY 10016
Attention: John R. Klopp
Chief Executive Officer
Facsimile: (212) 655-0044
with a copy to
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Thomas E. Kruger
Facsimile: (212) 856-7815
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein.
Section 6.3 Entire Agreement. This Agreement, including the
Exhibits hereto, constitutes the entire understanding of the parties relating to
the subject matter hereof and supersedes all prior agreements and
understandings, whether oral or written. No amendment
915272.17
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<PAGE>
or modification of the terms of this Agreement shall be binding or effective
unless expressed in writing and signed by each party.
Section 6.4 No Waiver. The waiver by any party of the breach
of any of the terms and conditions of, or any right under, this Agreement shall
not be deemed to constitute the waiver of any other breach of the same or any
other term or condition or of any similar right. No such waiver shall be binding
or effective unless expressed in writing and signed by the party giving such
waiver.
Section 6.5 Costs and Expenses. Except as provided below, each
party to this Agreement shall bear its own respective costs and expenses
incurred in connection with the negotiation, preparation, execution, delivery
and enforcement of this Agreement and the consummation of the transactions
contemplated hereby. The Company shall reimburse each of VNO, EOP and GM Trust
for its reasonable out-of-pocket expenses incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby (including the fees and
expenses of Sullivan & Cromwell, counsel to VNO, Weil Gotshal & Manges LLP,
counsel to GM Trust, and Neal Gerber & Eisenberg, counsel to EOP).
Section 6.6 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements executed and to be fully performed in such State.
Section 6.7 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
Section 6.8 Construction. The article and section headings
contained in this Agreement are inserted for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
915272.17
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CAPITAL TRUST, INC., in its own capacity and as the
CTC Holder
By: /s/ John R. Klopp
Name: John R. Klopp
Title: Chief Executive Officer
JOHN R. KLOPP
/s/ John R. Klopp
John R. Klopp, as Regular Trustee
Solely as trustee and not in his individual capacity
SHELI Z. ROSENBERG
/s/ Sheli Z. Rosenberg
Sheli Z. Rosenberg, as Regular Trustee
Solely as trustee and not in her individual capacity
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
its general partner
By: /s/ Peter B. Kisluk
Name: Peter B. Kisluk
Title: Vice President
EQUITY OFFICE PROPERTIES TRUST
By: /s/ Peter B. Kisluk
Name: Peter B. Kisluk
Title: Vice President
915272.17
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VORNADO REALTY L.P.
By: Vornado Realty Trust,
its general partner
By: /s/ Irwin Goldberg
Name: Irwin Goldberg, Vice President
Title: Chief Financial Officer
VORNADO REALTY TRUST
By: /s/ Irwin Goldberg
Name: Irwin Goldberg, Vice President
Title: Chief Financial Officer
STATE STREET BANK AND TRUST
COMPANY, as trustee for
General Motors Employes Global Group Pension Trust
By: /s/ Cheryl A. Hopson
Name: Cheryl A. Hopson
Title: Authorized Signatory
915272.17
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CAPITAL TRUST, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
---------------
8.25% STEP UP CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES
13.00% STEP UP NON-CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES
---------------
AMENDED AND RESTATED INDENTURE
Dated as of May 10, 2000
- --------------------------------------------------------------------------------
932388.8
<PAGE>
CAPITAL TRUST, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Amended and Restated Indenture dated as of May 10, 2000
Trust Indenture Amended and Restated
Act Section Indenture Section
- ---------------- -----------------
310(a)(1)........................................ 6.10
(a)(2)..................................... 6.10
(a)(3)..................................... Not Applicable
(a)(4)..................................... Not Applicable
(a)(5)..................................... 6.10
(b)........................................ 6.8, 6.10
311(a)........................................... 6.11
(b)........................................ 6.11
312(a)........................................... 4.1 and 4.2
(b)........................................ 4.2
(c)........................................ 4.2
313(a)(1)-(5) & (7)(8)........................... 6.6
(a)(6)..................................... Not Applicable
(b)(1)..................................... Not Applicable
(b)(2)..................................... 6.6
(c)........................................ 6.6
(d)........................................ 6.6
314(a)(1)-(3).................................... 4.3
(a)(4)..................................... 3.4
(b)........................................ Not Applicable
(c)(1)..................................... 2.6
(c)(2)..................................... 2.6
(c)(3)..................................... Not Applicable
(d)........................................ Not Applicable
(e)........................................ 15.5
(f)........................................ Not Applicable
315(a)........................................... 6.1
(b)........................................ 6.5
(c)........................................ 6.1
(d)........................................ 6.1
(d)(1)..................................... 6.1
(d)(2)..................................... 6.1
(d)(3)..................................... 6.1
(e)........................................ 5.10
316(a)........................................... 7.4
(a)(1)(A).................................. 5.8
(a)(1)(B).................................. 5.1, 5.9
(a)(2)..................................... Not Applicable
(b)........................................ 5.6
(c)........................................ 7.1
317(a)(1)........................................ 5.2
(a)(2)..................................... 5.2
(b)........................................ 3.3
318(a)........................................... 15.7
- -------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Amended and Restated Indenture.
932388.8
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I DEFINITIONS.....................................................................................2
Section 1.1. Certain Terms Defined.........................................................2
ARTICLE II THE DEBENTURES.................................................................................10
Section 2.1. Designation and Principal Amount.............................................10
Section 2.2. Maturity.....................................................................10
Section 2.3. Form and Payment.............................................................10
Section 2.4. Exchange and Registration of Transfer of Debentures;
Restrictions on Transfers; Depositary........................................11
Section 2.5. Interest.....................................................................13
Section 2.6. Authentication and Delivery of Debentures....................................14
Section 2.7. Execution of Debentures......................................................15
Section 2.8. Certificate of Authentication................................................15
Section 2.9. Denomination and Date of Debentures; Payments of
Interest.....................................................................15
Section 2.10. Registration, Transfer and Exchange..........................................16
Section 2.11. Mutilated, Defaced, Destroyed, Lost and Stolen Debentures....................17
Section 2.12. Cancellation of Debentures...................................................18
Section 2.13. Temporary Debentures.........................................................18
ARTICLE III COVENANTS OF THE COMPANY.......................................................................18
Section 3.1. Payment of Principal and Interest............................................18
Section 3.2. Offices for Payment, etc.....................................................18
Section 3.3. Paying Agents................................................................19
Section 3.4. Written Statement to Trustee.................................................19
Section 3.5. Limitation on Dividends; Transactions with Affiliates........................19
Section 3.6. Covenants as to CT Trust.....................................................20
Section 3.7. Existence....................................................................20
Section 3.8. Rule 144A Information........................................................20
ARTICLE IV HOLDERS OF DEBENTURES LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE.................................................................20
Section 4.1. Company to Furnish Trustee Information as to Names and
Addresses of Holders of Debentures...........................................20
Section 4.2. Preservation and Disclosure of Holders of Debentures'
Lists........................................................................21
Section 4.3. Reports by the Company.......................................................21
ARTICLE V REMEDIES OF THE TRUSTEE AND HOLDERS OF
DEBENTURES ON EVENT OF DEFAULT.................................................................22
Section 5.1. Event of Default Defined; Acceleration of Maturity;
Waiver of Default............................................................22
Section 5.2. Collection of Indebtedness by Trustee; Trustee May Prove
Debt.........................................................................23
Section 5.3. Application of Proceeds......................................................25
Section 5.4. Restoration of Rights on Abandonment of Proceedings..........................25
Section 5.5. Limitations on Suits by Holders of Debentures................................25
Section 5.6. Unconditional Right of Holders of Debentures to Institute
Certain Suits................................................................26
Section 5.7. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default............................................................26
Section 5.8. Control by Holders of Debentures.............................................26
Section 5.9. Waiver of Past Defaults......................................................26
932388.8
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Page
Section 5.10. Right of Court to Require Filing of Undertaking to Pay
Costs........................................................................27
Section 5.11. Suits for Enforcement........................................................27
Section 5.12. Unconditional Right of Holders of Debentures to Receive
Principal and Interest and of Holders of Convertible
Debentures to Convert........................................................27
ARTICLE VI CONCERNING THE TRUSTEE.........................................................................28
Section 6.1. Duties of the Trustee........................................................28
Section 6.2. Rights of Trustee............................................................28
Section 6.3. Individual Rights of Trustee.................................................29
Section 6.4. Trustee's Disclaimer.........................................................29
Section 6.5. Notice of Defaults...........................................................29
Section 6.6. Reports by Trustee to Holders................................................29
Section 6.7. Compensation and Indemnity...................................................29
Section 6.8. Replacement of Trustee.......................................................30
Section 6.9. Successor Trustee by Merger..................................................31
Section 6.10. Eligibility; Disqualification................................................31
Section 6.11. Preferential Collection of Claims Against Company............................31
ARTICLE VII CONCERNING THE HOLDERS OF DEBENTURES...........................................................31
Section 7.1. Evidence of Action Taken by Holders of Debentures............................31
Section 7.2. Proof of Execution of Instruments............................................31
Section 7.3. Holders to be Treated as Owners..............................................31
Section 7.4. Debentures Owned by Company Deemed Not Outstanding...........................31
Section 7.5. Right of Revocation of Action Taken..........................................32
ARTICLE VIII SUPPLEMENTAL INDENTURES........................................................................32
Section 8.1. Supplemental Indentures Without Consent of Holders of
Debentures...................................................................32
Section 8.2. Supplemental Indentures With Consent of Holders of
Debentures...................................................................33
Section 8.3. Effect of Supplemental Indenture.............................................33
Section 8.4. Documents to Be Given to Trustee.............................................33
Section 8.5. Notation on Debentures in Respect of Supplemental
Indentures...................................................................34
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE......................................................34
Section 9.1. Company May Consolidate, etc., on Certain Terms..............................34
Section 9.2. Successor Corporation Substituted............................................34
Section 9.3. Opinion of Counsel to Trustee................................................34
ARTICLE X REDEMPTION OF THE DEBENTURES...................................................................35
Section 10.1. Tax Event Redemption.........................................................35
Section 10.2. Optional Redemption by Company...............................................36
Section 10.3. No Sinking Fund..............................................................37
Section 10.4. Election to Redeem; Notice of Redemption; Partial
Redemptions..................................................................37
Section 10.5. Payment of Debentures Called for Redemption..................................37
Section 10.6. Exclusion of Certain Debentures from Eligibility for
Selection for Redemption.....................................................38
ARTICLE XI EXTENSION OF INTEREST PAYMENT PERIOD...........................................................38
Section 11.1. Extension of Interest Payment Period.........................................38
Section 11.2. Notice of Extension..........................................................39
932388.8
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Page
ARTICLE XII CONVERSION OF CONVERTIBLE DEBENTURES...........................................................39
Section 12.1. Conversion Rights............................................................39
Section 12.2. Conversion Procedures........................................................39
Section 12.3. Conversion Price Adjustments.................................................41
Section 12.4. Merger, Consolidation or Sale of Assets......................................43
Section 12.5. Notice of Adjustments of Conversion Price....................................45
Section 12.6. Prior Notice of Certain Events...............................................45
Section 12.7. Certain Additional Rights....................................................46
Section 12.8. Trustee Not Responsible for Determining Conversion Price
or Adjustments...............................................................46
Section 12.9. Reservation of Shares of Common Stock........................................46
Section 12.10. Payment of Certain Taxes upon Conversion.....................................46
Section 12.11. Nonassessability.............................................................47
ARTICLE XIII SUBORDINATION OF DEBENTURES....................................................................47
Section 13.1. Debentures Subordinate to Senior Indebtedness................................47
Section 13.2. Payment Over of Proceeds upon Dissolution, Etc...............................47
Section 13.3. Prior Payment to Senior Indebtedness upon Acceleration of
Debentures...................................................................48
Section 13.4. No Payment When Senior Indebtedness in Default...............................48
Section 13.5. Payment Permitted in Certain Situations......................................48
Section 13.6. Subrogation to Rights of Holders of Senior Indebtedness......................48
Section 13.7. Provisions Solely to Define Relative Rights..................................49
Section 13.8. Trustee to Effectuate Subordination..........................................49
Section 13.9. No Waiver of Subordination Provisions........................................49
Section 13.10. Notice to Trustee............................................................49
Section 13.11. Reliance on Judicial Order or Certificate of Liquidating
Agent........................................................................50
Section 13.12. Trustee Not Fiduciary for Holders of Senior Indebtedness.....................50
Section 13.13. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.............................................50
Section 13.14. Article Applicable to Paying Agents..........................................50
Section 13.15. Certain Conversions Deemed Payment...........................................50
ARTICLE XIV EXPENSES.......................................................................................51
Section 14.1. Payment of Expenses..........................................................51
Section 14.2. Payment Upon Resignation or Removal..........................................51
ARTICLE XV MISCELLANEOUS PROVISIONS.......................................................................51
Section 15.1. Incorporators, Stockholders, Officers and Trustees of
Company Exempt from Individual Liability.....................................51
Section 15.2. Provisions of Indenture for the Sole Benefit of Parties and
Holders of Debentures........................................................51
Section 15.3. Right to Assign; Successors and Assigns Bound by
Indenture....................................................................52
Section 15.4. Notices and Demands on Company, Trustee and Holders of
Debentures...................................................................52
Section 15.5. Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein......................................................52
Section 15.6. Payments Due on Saturdays, Sundays and Holidays..............................53
Section 15.7. Conflict of Any Provision of Indenture with Trust Indenture
Act..........................................................................53
Section 15.8. New York Law to Govern.......................................................53
Section 15.9. Counterparts.................................................................53
Section 15.10. Effect of Headings; Gender...................................................53
Section 15.11. Accrued Distributions........................................................53
</TABLE>
932388.8
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<PAGE>
THIS AMENDED AND RESTATED INDENTURE, dated as of May 10, 2000, between
CAPITAL TRUST, INC., a Maryland corporation and successor to Capital Trust, a
California business trust (the "Company"), having its principal office at 605
Third Avenue, New York, New York 10016, and Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of Delaware,
as trustee hereunder (the "Trustee"),
W I T N E S S E T H:
-------------------
WHEREAS, the Company's predecessor executed and delivered to the
Trustee a certain indenture, dated as of July 28, 1998 (the "Initial
Indenture"), pursuant to which a $154,650,000 aggregate principal amount of
convertible debentures designated as the 8.25% step up convertible junior
subordinated debentures (herein called the "Original Convertible Debentures")
were issued;
WHEREAS, pursuant to a first supplemental indenture, dated as of
January 28, 1999 (the "First Supplemental Indenture" and, together with the
Initial Indenture, the "Indenture"), entered into upon consummation of the
merger of the predecessor of the Company with and into the Company, the Company
has assumed all the obligations of its predecessor under the Original
Convertible Debentures and the Indenture;
WHEREAS, the Trustee is the Holder of all of the Original Convertible
Debentures Outstanding as of the date hereof (the "Debenture Holder") in its
capacity as Institutional Trustee under and as defined in that certain
declaration of trust (the "Declaration"), dated and effective as of July 28,
1998, by the Company and the Trustees as defined therein and the holders, from
time to time, of undivided beneficial interests in CT Convertible Trust I, a
Delaware statutory business trust and consolidated subsidiary of the Company
("CT Trust" or the "Trust");
WHEREAS, pursuant to the Declaration (i) Vornado Realty L.P., a
Delaware limited partnership ("VRLP"), EOP Operating Limited Partnership, a
Delaware limited partnership ("EOPLP"), and the predecessor trustee of State
Street Bank and Trust Company, as trustee for the predecessors of General Motors
Employes Global Group Pension Trust, a New York trust, were issued an aggregate
of $150,000,000 in liquidation amount of 8.25% step up convertible trust
preferred securities (the "Original Convertible Preferred Securities")
representing undivided beneficial interests in the assets of the Trust and (ii)
the Company was issued $4,650,000 in liquidation amount of 8.25% step up
convertible trust common securities (the "Original Common Securities")
representing undivided beneficial interests in the assets of the Trust;
WHEREAS, the Company and certain of its affiliates and certain
affiliates of Citigroup Investments Inc., a Delaware corporation, are parties to
that certain venture agreement, dated as of March 8, 2000 (the "Venture
Agreement"), pursuant to which, among other things, the parties thereto will
co-sponsor, commit to invest capital in and manage real estate mezzanine
investment opportunity funds, provided however, that prior to the commencement
of such activity (i) the Company, VRLP, EOPLP and GM Trust enter into a
termination agreement that would terminate that certain co-investment agreement,
dated as of July 28, 1999, among the parties thereto and (ii) the Company, VRLP,
EOPLP and GM Trust enter into a modification agreement, dated as of the date
hereof, that would amend the Indenture and the Declaration in order to modify
the terms of the Original Convertible Preferred Securities and the Original
Common Securities to provide the Company with significantly greater flexibility
with regard to electing to be taxed as a REIT as required in the Venture
Agreement;
WHEREAS, Section 8.2 of the Indenture provides that, in cases where
certain rights are adversely affected or impaired, with the consent (evidenced
as provided in Article VII of the Indenture) of each Holder of the Original
Convertible Debentures at the time Outstanding, the Company, when authorized by
a resolution of its Board of Directors, and the Trustee may enter into an
indenture supplemental to the Indenture for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Original Convertible Debentures;
WHEREAS, the Debenture Holder has provided the Company with its
irrevocable consent (evidenced as provided in Article VII of the Indenture) to
this Amended and Restated Indenture which will establish and provide for the
issuance by the Company to CT Trust of (i) convertible debentures designated as
its 8.25% Step Up Convertible Junior Subordinated Debentures (the "Convertible
Debentures"), a specimen copy of which is attached hereto as Exhibit A, on the
terms set forth herein and non-convertible debentures designated as its 13.00%
Step Up Non-Convertible Junior Subordinated Debentures (the "Non-Convertible
Debentures" and
932388.8
<PAGE>
together with the Convertible Debentures, or individually, the "Debentures"), a
specimen copy of which is attached hereto as Exhibit B, on the terms set forth
herein;
WHEREAS, pursuant to that certain amended and restated declaration of
trust of CT Trust, dated as of the date hereof, CT Trust has issued to VRLP,
EOPLP and GM Trust $150,000,000 aggregate liquidation amount of its variable
step up convertible trust preferred securities (the "Convertible Preferred
Securities"), representing undivided beneficial interests in the assets of CT
Trust; and
WHEREAS, all things necessary to make this Amended and Restated
Indenture a valid agreement of the Company and the Trustee and a valid amendment
of and supplement to the Indenture have been done.
NOW, THEREFORE, THIS AMENDED AND RESTATED INDENTURE WITNESSETH:
The Company and the Trustee mutually covenant and agree that there is
hereby established the terms of the Convertible Debentures to be issued under
this Amended and Restated Indenture, which shall be as set forth herein and in
the form of Convertible Debentures attached hereto as Exhibit A, and the
Non-Convertible Debentures, to be issued under this Amended and Restated
Indenture, which shall be as set forth herein and in the form of Non-Convertible
Debentures attached hereto as Exhibit B, and in consideration of the premises
and the acquisition and acceptance of the Debentures by the holders thereof, the
Company and the Trustee mutually covenant and agree, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Amended and Restated Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Amended and Restated Indenture that are
defined in the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), or the definitions of which in the Securities Act of 1933, as amended
(the "Securities Act"), are referred to in the Trust Indenture Act, including
terms defined therein by reference to the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force at the date of this Amended and Restated
Indenture. All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Amended and Restated Indenture as a whole, as
supplemented and amended from time to time, and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.
"Additional Sums" shall have the meaning set forth in Section 2.5(d).
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Amended and Restated Indenture" means this instrument as originally
executed and delivered or as it may from time to time be amended or supplemented
as herein provided, as so amended or supplemented or both, and shall include the
forms and terms of the Debentures appearing as Exhibits A and B to this
instrument.
"Applicable Price" means (i) in the event of a Non-Stock Fundamental
Change in which the holders of shares of the Common Stock receive only cash, the
amount of cash received by a holder of one share of Common Stock and (ii) in the
event of any other Fundamental Change, the average of the daily Closing Price
for one share of Common Stock during the 10 Trading Days immediately prior to
the record date for the determination of the holders of shares of Common Stock
entitled to receive cash, securities, property or other assets in connection
with such Fundamental Change or, if there is no such record date, prior to the
date upon which the holders of Common Stock shall have the right to receive such
cash, securities, property or other assets.
932388.8
2
<PAGE>
"applicants" has the meaning specified in Section 4.2(b).
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday, or any
other day on which banking institutions in New York, New York or Wilmington,
Delaware are permitted or required by any applicable law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, units representing interests, participations, rights in or other
equivalents (however designated) of such Person's capital stock, including, with
respect to partnerships, limited liability companies and business trusts,
partnership interests (whether general or limited), limited liability company
interests, beneficial interests and any other interest or participation that
confers upon a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, limited liability company or
business trust, and any rights (other than debt securities convertible into
capital stock), warrants or options exchangeable for or convertible into such
capital stock.
"Certificated Convertible Preferred Securities" means Convertible
Preferred Securities issued in definitive registered form.
"Class A Common Stock" means class A common stock, par value $.01 per
share, of the Company.
"Closing Price" with respect to any security on any day means the last
reported sale price, regular way on such day, or, if no sale takes place on such
day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Composite Tape, or, if such
security is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which such security is listed or
admitted to trading, or, if such security is not listed or admitted to trading
on a national securities exchange, on the National Market System of the National
Association of Securities Dealers, Inc., or, if such security is not quoted or
admitted to trading on such quotation system, on the principal quotation system
on which such security is listed or admitted to trading or quoted, or, if not
listed or admitted to trading or quoted on any national securities exchange or
quotation system, the average of the closing bid and asked prices of such
security in the over-the-counter market on the day in question as reported by
the National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available in such manner, as furnished by any
New York Stock Exchange member firm selected from time to time by the Board of
Directors (or any committee duly authorized by the Board of Directors) of the
Company for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors (or any committee duly
authorized by the Board of Directors) of the Company.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, as amended, or if at any
time after the execution and delivery of this Amended and Restated Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Common Dividend" has the meaning specified in Section 2.5(a).
"Common Rate" has the meaning specified in Section 2.5(a).
"Common Securities" means undivided beneficial interests in the assets
of the CT Trust which rank pari passu with Convertible Preferred Securities
issued by the CT Trust; provided, however, that upon the occurrence of an Event
of Default, the rights of holders of Common Securities to payment in respect to
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Convertible Preferred Securities.
"Common Securities Guarantee" means the Amended and Restated Common
Securities Guarantee Agreement dated as of the date hereof by the Guarantor.
932388.8
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<PAGE>
"Common Stock" includes Class A Common Stock, class B common stock, par
value $.01 per share, of the Company, and any other common stock of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which is not subject to redemption by the Company.
"Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value (as determined in good faith by the Board of
Directors of the Company) of the consideration received by holders of Common
Stock consists of common stock that, for the 10 Trading Days immediately prior
to such Fundamental Change, has been admitted for listing or admitted for
listing subject to notice of issuance on a national securities exchange or
quoted on The Nasdaq National Market; provided, however, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless either (i) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Convertible Debentures continue to exist as outstanding
Convertible Debentures, or (ii) not later than the occurrence of such
Fundamental Change, the outstanding Convertible Debentures are converted into or
exchanged for debentures of a corporation succeeding to the business of the
Company, which debentures have terms substantially similar to those of the
Convertible Debentures.
"Company" means Capital Trust, Inc., a Maryland corporation and
successor to Capital Trust, a California business trust, until a successor
corporation shall have become such pursuant to the applicable provisions of this
Amended and Restated Indenture, and thereafter "Company" shall mean such
successor corporation.
"Compound Interest" shall have the meaning specified in Section 11.1.
"Consolidated Net Worth" of any Person means the consolidated or, for
any period that consolidated financial statements are not available under GAAP,
the combined, stockholders' or shareholders' equity of such Person, determined
on a consolidated basis in accordance with GAAP, less amounts attributable to
Disqualified Stock or treasury stock of such Person; provided, however, that,
with respect to the Company, adjustments made subsequent to the date of original
issuance of the Debentures to the accounting books and records of the Company
and its subsidiaries in accordance with any provisions of GAAP that would have
substantially the same effect on such books and records as Accounting Principles
Board Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise
resulting from the acquisition of control of the Company by another Person,
shall be of no effect.
"Conversion Agent" has the meaning assigned thereto in the Declaration.
"Conversion Date" has the meaning specified in Section 12.2(a).
"Conversion Price" has the meaning set forth in Section 12.1.
"Convertible Amount" has the meaning specified in the Declaration.
"Convertible Coupon Rate" has the meaning specified in Section 2.5(a).
"Convertible Debenture" or "Convertible Debentures" has the meaning
stated in the seventh recital of this Amended and Restated Indenture and more
particularly means any Convertible Debentures authenticated and delivered under
this Amended and Restated Indenture.
"Convertible Preferred Securities" has the meaning specified in the
recitals to this Amended and Restated Indenture.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Amended and
Restated Indenture is located at 1100 North Market Street, 9th Floor,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
"Coupon Rate" means either the Convertible Coupon Rate or the
Non-Convertible Coupon Rate.
"CT Trust" or "Trust" means CT Convertible Trust I, a Delaware
statutory business trust.
932388.8
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<PAGE>
"Debenture" or "Debentures" has the meaning stated in the seventh
recital of this Amended and Restated Indenture and more particularly means
Convertible Debentures and/or the Non-Convertible Debenture; provided, however,
that if, in connection with any matter requiring a vote of the Holders of any
Debentures, treating the Holders of Convertible Debentures and Non-Convertible
Debentures as one class could result in inequitable treatment of either the
Holders of Convertible Debentures or the Holders of Non-Convertible Debentures,
then "Debentures" shall mean "Convertible Debentures or Non-Convertible
Debentures."
"Debt" of a Person means, all indebtedness of such Person which is for
money borrowed.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of the date hereof.
"defaulted interest" has the meaning specified in Section 2.9.
"Deferred Interest" has the meaning specified in Section 11.1.
"Delaware Trustee" has the meaning specified in the Declaration.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event (as described in the Declaration), the Trust is
to be dissolved in accordance with the Declaration, and the Debentures held by
the Institutional Trustee are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Disqualified Stock" of any Person means any Capital Stock of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or otherwise (including upon the
occurrence of an event) matures or is required to be redeemed (pursuant to any
sinking fund obligation or otherwise) or is convertible into or exchangeable for
indebtedness or is redeemable at the option of the holder thereof, in whole or
in part, at any time prior to the final Stated Maturity of the Debentures.
"Dollar" means the coin or currency of the United States of America
which as of the time of payment is legal tender for the payment of public and
private debts.
"EOPLP" has the meaning specified in the fourth recital of this Amended
and Restated Indenture.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" has the meaning specified in Section 12.3(d).
"Extension Certificate" has the meaning specified in Section 11.1.
"Extension Period" has the meaning specified in Section 11.1.
"Fundamental Change" means the occurrence of any transaction or event
or series of transactions or events pursuant to which all or substantially all
of the shares of Common Stock shall be exchanged for, converted into, acquired
for or shall constitute solely the right to receive cash, securities, property
or other assets (whether by means of an exchange offer, liquidation, tender
offer, consolidation, merger, combination, reclassification, recapitalization or
otherwise); provided, however, in the case of any such series of transactions or
events, for purposes of adjustment of the Conversion Price, such Fundamental
Change shall be deemed to have occurred when substantially all of the shares of
Common Stock shall have been exchanged for, converted into or acquired for, or
shall constitute solely the right to receive, such cash, securities, property or
other assets, but the adjustment shall be based upon the consideration that the
holders of shares of Common Stock received in the transaction or event as a
result of which more than 50% of the shares of Common Stock shall have been
exchanged for, converted into or acquired for, or shall constitute solely the
right to receive, such cash, securities, property or other assets.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States, applied on a consistent basis throughout the
term of this Amended and Restated Indenture.
932388.8
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<PAGE>
"GM Trust" means State Street Bank and Trust Company, as trustee for
General Motors Employes Global Group Pension Trust, a New York trust and
successor to both General Motors Hourly-Rate Employes Pension Trust, a New York
trust, and General Motors Salaried Employes Pension Trust, a New York trust.
"Government Obligations" means securities which are (i) direct
obligations of the United States government for which its full faith and credit
is pledged or (ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States government, the
payment of which obligations is unconditionally guaranteed by the United States
government, and which, in either case, are full faith and credit obligations of
the United States government, and which are not callable or redeemable at the
option of the issuer thereof prior to their stated maturity.
"Guarantor" means the Company in its capacity as guarantor under any
Trust Securities Guarantees.
"Holder" or "Holder of Debentures" "Holder of Non-Convertible
Debentures" or "Holder of Convertible Debentures" or other similar terms mean
the person in whose name such Debenture is registered in the Security Register.
"incur" means to issue, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
the payment of, any Debt.
"Institutional Trustee" has the meaning specified in the Declaration.
"Interest Payment Date," when used with respect to any Debenture, means
the Stated Maturity of an installment of interest on such Debenture.
"Issuance Date" has the meaning set forth in Section 2.5(a).
"Lien" means any mortgage or deed of trust, pledge, assignment,
security interest, lien, charge, or other encumbrance or preferential
arrangement (including, without limitation, any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Majority Holders" means Holders of not less than a majority in
aggregate principal amount of the Debentures or of a series thereof, as the
context requires, at the time outstanding immediately prior to the redemption
pursuant to Section 10.1 or the Non-Stock Fundamental Change for which the
Conversion Price is subject to adjustment pursuant to Section 12.4 (voting as
one class).
"Maturity" when used with respect to any Debenture means the date on
which the principal of such Debenture or an installment of principal becomes due
and payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Additional Sums, if any, and (to the extent
permitted by applicable law) Compound Interest, if any.
"Ministerial Action" has the meaning specified in Section 10.1(a)
"90-Day Period" has the meaning specified in Section 10.1(a).
"Non-Convertible Amount" has the meaning specified in the Declaration.
"Non-Convertible Coupon Rate" has the meaning specified in Section
2.5(b).
"Non-Convertible Debenture" or "Non-Convertible Debentures" has the
meaning stated in the seventh recital of this Amended and Restated Indenture and
more particularly means any Non-Convertible Debentures authenticated and
delivered under this Amended and Restated Indenture.
"Non-Stock Fundamental Change" means any Fundamental Change other than
a Common Stock Fundamental Change.
932388.8
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<PAGE>
"Non-U.S. Person" means any person that is not a "U.S. person" as such
term is defined in Rule 902 under the Securities Act.
"Notice of Conversion" has the meaning specified in Section 12.2(a).
"Offeror" has the meaning specified in Section 2.4(c).
"Officers' Certificate" means a certificate signed on behalf of the
Company by the Chairman of the Board of Directors or any vice chairman or the
president or any vice president and by the chief financial officer, the
treasurer, the controller, any assistant treasurer, the secretary or any
assistant secretary of the Company and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 15.5.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee of or counsel to the Company, and who shall be reasonably
acceptable to the Trustee. Each Opinion of Counsel shall include the statements
provided for in Section 15.5, if and to the extent required hereby.
"Optional Redemption Price" has the meaning specified in Section 10.2.
"Outstanding" when used with reference to Debentures, subject to the
provisions of Section 7.4, means, as of any particular time, all Debentures
authenticated and delivered under this Amended and Restated Indenture, except
(a) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Debentures, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the required
currency shall have been deposited in trust with the Trustee or with
any Paying Agent (other than the Company) or shall have been set aside,
segregated and held in trust by the Company for the Holders of such
Debentures (if the Company shall act as its own Paying Agent), provided
that if such Debentures, or portions thereof, are to be redeemed prior
to the Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Debentures that have been paid pursuant to Section 2.11,
converted into Common Stock pursuant to Article XII, or in exchange for
or in lieu of which other Debentures have been authenticated and
delivered pursuant to the Amended and Restated Indenture (except with
respect to any such Debenture as to which proof satisfactory to the
Trustee and the Company is presented that such Debenture is held by a
person in whose hands such Debenture is a legal, valid and binding
obligation of the Company).
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Debenture on behalf of the Company.
"Persons" or "Person" means any individual, corporation, partnership,
joint venture, limited liability company, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Debentures, means the
place or places where the principal of and interest, if any, on the Debentures
are payable as specified pursuant to Section 3.2.
"Predecessor Convertible Debenture" of a Convertible Debenture means
every previous Convertible Debenture evidencing all or a portion of the same
debt as that evidenced by such Convertible Debenture; and, for the purposes of
this definition, a Convertible Debenture authenticated and delivered under
Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Convertible Debenture shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Convertible Debenture.
"Predecessor Non-Convertible Debenture" of a Non-Convertible Debenture
means every previous Non- Convertible Debenture evidencing all or a portion of
the same debt as that evidenced by such Non-Convertible Debenture; and, for the
purposes of this definition, a Non-Convertible Debenture authenticated and
delivered
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under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Non-Convertible Debenture shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Non-Convertible Debenture.
"Preferred Securities Guarantee" means the Amended and Restated
Preferred Securities Guarantee Agreement dated as of the date hereof between the
Guarantor and Wilmington Trust Company, as Preferred Guarantee Trustee.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"principal" whenever used with reference to the Debentures or any
Debenture or any portion thereof, shall be deemed to include "and premium, if
any."
"Purchaser Share Price" means, with respect to any Common Stock
Fundamental Change, the average of the daily Closing Price for one share of the
common stock received by holders of Common Stock (determined as provided herein)
in such Common Stock Fundamental Change during the five Trading Days immediately
prior to the date fixed for the determination of the holders of Common Stock
entitled to receive such common stock or, if there is no such date, prior to the
date upon which the holders of Common Stock shall have the right to receive such
common stock, in each case, as adjusted in good faith by the Board of Directors
of the Company (whose good faith determination shall be conclusive and described
in a resolution of the Board of Directors submitted to the Trustee) to
appropriately reflect events of a type analogous to any of the events that
trigger adjustments to the Conversion Price as set forth in Section 12.3 herein.
"QIB" or "Qualified Institutional Buyer" shall mean "Qualified
Institutional Buyer" as such term is defined in Rule 144A under the Securities
Act.
"record date" has the meaning specified in Section 2.9.
"Redemption Date" has the meaning specified in Section 10.1(a).
"Redemption Price" has the meaning specified in Section 10.1(a).
"Reference Date" has the meaning specified in Section 12.3(c).
"Reference Market Price" initially means $7.00 and, in the event of any
adjustment to the Conversion Price other than as a result of a Fundamental
Change, the Reference Market Price shall also be adjusted so that the ratio of
the Reference Market Price to the Conversion Price after giving effect to any
such adjustment shall also be the same as the ratio of the initial Reference
Market Price to the initial Conversion Price.
"Registrar" has the meaning specified in Section 2.10.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means (a) the indenture trustee or other trustee,
agent or representative for any Senior Indebtedness or (b) with respect to any
Senior Indebtedness that does not have any such trustee, agent or other
representative (i) in the case of such Senior Indebtedness issued pursuant to an
agreement providing for voting arrangements as among the holders or owners of
such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"Responsible Officer" when used with respect to the Trustee means any
officer within the corporate trust department (or any successor department) of
the Trustee including any vice president, assistant vice president, assistant
secretary, senior trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Corporate Trust Office
because of his or her knowledge of and familiarity with the particular subject.
932388.8
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"Restricted Debenture" has the meaning specified in Section 2.4(a).
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Sales Notice" has the meaning specified in Section 2.4(c).
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning specified in Section 2.10.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (a) indebtedness of the
Company for money borrowed (but excluding trade accounts payable arising in the
ordinary course of business) under any credit agreements, notes, guarantees or
similar documents and (b) indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by the Company; (ii) all capital lease
obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the Company
(contingent or otherwise) with respect to an interest rate or other swap, cap or
collar agreements or other similar instruments or agreements or foreign currency
hedge, exchange, purchase or similar instruments or agreements; (vi) all
obligations of the types referred to in clauses (i) through (v) of other Persons
for the payment of which the Company is responsible or liable as obligor,
guarantor or otherwise; and (vii) all obligations of the types referred to in
clauses (i) through (vi) above of other Persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by
the Company), whether outstanding on the date of this Amended and Restated
Indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company, except for any such indebtedness that is by its terms
subordinated to or pari passu with the Debentures. Such Senior Indebtedness
shall continue to be Senior Indebtedness irrespective of any deferrals,
renewals, extensions or refundings of, or amendments, modifications, supplements
or waivers of any term of such Senior Indebtedness.
"series of Debentures" has the meaning specified in Section 2.1(c).
"Special Event" has the meaning specified in Section 4(c) of Annex I to
the Declaration.
"Stated Maturity" when used with respect to any Debenture or any
installment of principal thereof or interest thereon, means the date on which
the principal of such Debenture or such installment of principal or interest is
due and payable in accordance with the terms thereof.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of the
outstanding Capital Stock (or other interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, general
partners, managers, managing members, managing partners or trustees thereof or,
if such persons are not elected, to vote on any matter that is submitted to the
vote of all persons holding ownership interests in such entity is at the time
owned or controlled, directly or indirectly, by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
"Trading Day" shall mean a day on which any securities are traded on
the national securities exchange or quotation system used to determine the
Closing Price.
"Transfer Restriction Termination Date" means the earlier of the first
date on which (i) the Convertible Preferred Securities, the Debentures and any
shares of Class A Common Stock issued or issuable upon the conversion or
exchange thereof (other than (A) such securities acquired by the Company or any
Affiliate thereof since the Issue Date of the Convertible Preferred Securities
and (B) shares of Class A Common Stock issued upon the conversion or exchange of
any such security described in clause (A) above) may be sold pursuant to Rule
144(k) (or any successor provision) and (ii) all of such Convertible Preferred
Securities, Debentures and/or shares of Class A Common Stock shall have been
sold pursuant to an effective registration statement.
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"Trust" or "CT Trust" means CT Convertible Trust I, a Delaware
statutory business trust.
"Trust Indenture Act" or "TIA" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Amended and Restated Indenture was originally
executed.
"Trust Securities" means the Common Securities and the Convertible
Preferred Securities of CT Trust.
"Trust Securities Guarantees" means the Common Securities Guarantee and
the Preferred Securities Guarantee.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof until a successor Trustee shall have become such pursuant to
the provisions hereof, and thereafter, "Trustee" shall mean or include each
Person who is then a Trustee hereunder.
"United States of America" or "United States" means the United States
of America (including the states and the District of Columbia), its territories,
possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
"U.S. Person" means (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity created or organized in or under
the laws of the United States or any state or political subdivision thereof,
(iii) an estate the income of which is subject to United States federal income
taxation regardless of its sources or (iv) a trust whose administration is
subject to the primary supervision of a United States court and which has one or
more United States fiduciaries who have the authority to control all substantial
decisions of the Trust.
"vice president" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president."
"VRLP" has the meaning specified in the fourth recital of this Amended
and Restated Indenture.
ARTICLE II
THE DEBENTURES
Section 2.1. Designation and Principal Amount.
(a) There are hereby authorized Convertible Debentures designated the
"8.25% Step Up Convertible Junior Subordinated Debentures," limited in aggregate
principal amount to $92,524,000, which amount shall be as set forth in any
written order of the Company for the authentication and delivery of Convertible
Debentures pursuant to Section 2.6 of this Amended and Restated Indenture.
(b) There are hereby authorized Non-Convertible Debentures designated
the "13.00% Step Up Non- Convertible Junior Subordinated Debentures," limited in
aggregate principal amount to $62,126,000, which amount shall be as set forth in
any written order of the Company for the authentication and delivery of Non-
Convertible Debentures pursuant to Section 2.6 of this Amended and Restated
Indenture.
(c) Each of the Convertible Debentures and the Non-Convertible
Debentures shall be treated as a separate series of Debentures under this
Amended and Restated Indenture with respect to those Articles and Sections
hereof that make a distinction between the Convertible Debentures and the
Non-Convertible Debentures.
Section 2.2. Maturity. The Maturity Date is September 30, 2018.
Section 2.3. Form and Payment.
(a) Except as provided in Section 2.6, each Debenture shall be issued
in fully registered certificated form without coupons in denominations of $1,000
in principal amount and integral multiples thereof. Principal and interest on
any Debenture issued in certificated form will be payable, the transfer of such
Debenture will be registrable and such Debenture will be exchangeable for a
Debenture bearing identical terms and provisions at the
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office or agency of the Trustee; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Holder at such
address as shall appear in the Security Register. Notwithstanding the foregoing,
so long as the Holder of any Debenture is the Institutional Trustee, the payment
of the principal of and interest (including Compound Interest and Additional
Sums, if any) on such Debenture held by the Institutional Trustee will be made
in immediately available funds at such place and to such account as may be
designated by the Institutional Trustee.
(b) The Debentures are subject to the terms set forth in this Amended
and Restated Indenture including, without limitation, Exhibit A and Exhibit B
hereto, the terms of which are hereby incorporated in their entirety by
reference.
(c) The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the form of Exhibit A or Exhibit
B to this Amended and Restated Indenture, as the case may be.
(d) The definitive Debentures shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debentures, as evidenced by their
execution of such Debentures.
Section 2.4. Exchange and Registration of Transfer of Debentures;
Restrictions on Transfers; Depositary.
(a) Each Debenture that bears or is required to bear the legend set
forth in this Section 2.4(a) (a "Restricted Debenture") shall be subject to the
restrictions on transfer provided in the legend set forth in this Section
2.4(a), unless such restrictions on transfer shall be waived by the written
consent of the Company, and the Holder of each Restricted Debenture, by such
Holder's acceptance thereof, agrees to be bound by such restrictions on
transfer. As used in this Section 2.4(a) and in Section 2.4(b), the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Debenture.
Prior to the Transfer Restriction Termination Date, any certificate
evidencing a Debenture shall bear a legend in substantially the following form
(with elimination of references to Class A Common Stock, as appropriate, in the
case of certificates evidencing Non-Convertible Debentures), unless otherwise
agreed by the Company (with written notice thereof to the Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY
IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY OR, IF THIS SECURITY IS CONVERTIBLE INTO CLASS A
COMMON STOCK, THE CLASS A COMMON STOCK ISSUABLE UPON CONVERSION OR
EXCHANGE OF THIS SECURITY EXCEPT (A) TO CAPITAL TRUST, INC. (THE
"COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE FOR THE CONVERTIBLE PREFERRED
SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF THIS
CERTIFICATE EVIDENCES CLASS A COMMON STOCK, THE TRANSFER AGENT FOR THE
CLASS A COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM SUCH TRUSTEE OR TRANSFER AGENT), (E)
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OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED
HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE
CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE
(OR, IF THIS CERTIFICATE EVIDENCES CLASS A COMMON STOCK, SUCH HOLDER
MUST FURNISH TO THE TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE COMPANY OR CT CONVERTIBLE TRUST I (THE
"TRUST") MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT). IF THIS
CERTIFICATE DOES NOT EVIDENCE CLASS A COMMON STOCK AND IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH
TO THE TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE
DEBENTURES, AS THE CASE MAY BE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS THE COMPANY OR THE TRUST MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY
UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN THE AMENDED AND RESTATED INDENTURE REFERRED TO
HEREIN.
Following the Transfer Restriction Termination Date, any Debenture or
security issued in exchange or substitution therefor (other than (i) Debentures
acquired by the Company or any Affiliate thereof since the issue date of the
Original Convertible Preferred Securities and (ii) shares of Class A Common
Stock issued upon the conversion or exchange of any Debenture described in
clause (i) above) may upon surrender of such Debenture for exchange to the
Registrar in accordance with the provisions of this Section 2.4, be exchanged
for a new Debenture or Debentures, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by this Section 2.4(a).
(b) Any Debenture or shares of Class A Common Stock issued upon the
conversion or exchange of a Debenture that, prior to the Transfer Restriction
Termination Date, is purchased or owned by the Company or any Affiliate thereof
may not be resold by the Company or such Affiliate unless registered under the
Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such
Debentures or shares of Class A Common Stock, as the case may be, no longer
being "restricted securities" (as defined under Rule 144).
(c) Each Debenture shall be subject to the restrictions on transfer
provided in this Section 2.4(c).
(i) If a holder of a Debenture (the "Offeror") desires to
sell, assign, transfer, encumber, or otherwise dispose of any of his
Debentures, he shall give written notice to the Company of his desire
to do so and of the price per debenture and other terms under which he
proposes to dispose of all or part of his Debentures (the "Sales
Notice"), which Sales Notice shall constitute an offer on the part of
the Offeror to sell to the Company any such Debentures upon the terms
and conditions set forth in such notice.
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(ii) Unless, within ten (10) days after the giving of the
Sales Notice by the Offeror pursuant to subparagraph (i) of this
Section 2.4(c), the Company shall give written notice to the Offeror
that the Company irrevocably commits to purchase the Debentures subject
of the Sales Notice at the price and under the terms specified in the
Sales Notice given by the Offeror, the Company shall be deemed to have
rejected the offer of the Offeror to sell the Debentures subject of the
Sales Notice and the Offeror shall be free without restriction under
this Section 2.4(c) to sell the Debentures subject of the Sales Notice
to any other Person, provided however, if the price per debenture is
less than 90% of the price and the other terms are more favorable than
those contained in the Sales Notice, the Offeror shall again offer to
sell the Debentures in accordance with the provisions of subparagraph
(i) of this Section 2.4(c) before it may complete any such sale and
provided further, that the Debentures subject of the Sales Notice shall
again be subject to the provisions of subparagraph (i) of this Section
2.4(c) if within ninety (90) days after the giving of the Sale Notice,
the Offeror shall not have completed the disposition of such
Debentures.
(iii) If the Company irrevocably commits to purchase the
Debentures as contemplated by subparagraph (ii) of this Section 2.4(c),
the closing of such purchase shall take place at the principal place of
business of the Company at 10:00 A.M. (New York City time) on the third
(3rd) day following the expiration of the ten (10) day period referred
to subparagraph (ii) of this Section 2.4(c), or if such day is not a
Business Day, then the next day that is a Business Day.
(iv) The provisions of this Section 2.4(c) shall not apply to
one or more transfers of the Debentures (i) by the GM Trusts to one or
more trusts for the benefit of the employees of General Motors
Corporation or its Affiliates, (ii) by VRLP to any Affiliate of Vornado
Realty Trust or VRLP, or (iii) EOPLP to any Affiliate of Equity Office
Properties Trust or EOPLP.
Section 2.5. Interest.
(a) Each Convertible Debenture will bear interest at the rate of 8.25%
per annum from and including May 10, 2000 (the "Issuance Date") to and including
March 31, 2002, such rate of interest per annum automatically increasing on
April 1, 2002 to the greater (as determined as of the last Business Day of each
calendar quarter) of the following:
(i) 10.00% per annum, such rate of interest per annum
automatically increasing by an additional .75% per annum (any such
increase shall be cumulative with any such prior increase(s)) on
October 1, 2004 and again on each subsequent October 1, and
(ii) the Common Rate
(the rate of interest in effect at any time is hereinafter referred to
as the "Convertible Coupon Rate"), until the principal thereof becomes
due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Convertible Coupon Rate,
compounded quarterly, payable (subject to the provisions of Article XI)
quarterly in arrears on March 31, June 30, September 30 and December 31
of each year (each, an "Interest Payment Date"), commencing on June 30,
2000, to the Person in whose name such Convertible Debenture or any
Predecessor Convertible Debenture is registered, at the close of
business on the record date for such interest installment, which shall
be the close of business on the fifteenth day prior to that Interest
Payment Date.
The "Common Rate" shall be calculated for each
calendar quarter during which the Company pays any Common Dividend, and
the Common Rate for each such quarter means the product, expressed as a
percentage rate per annum, of (a) the fraction, the numerator of which
is the aggregate dollar amount of Common Dividend paid on one share of
Class A Common Stock during such quarter and the denominator of which
is $7.00 (subject to adjustment in proportion to each adjustment to the
Conversion Price triggered by events occurring prior to such quarter),
multiplied by (b) four. "Common Dividend" means any cash dividend or
distribution payable on the Class A Common Stock of the Company.
For purposes of demonstration of the rate of interest
described in clause (i) of this Section 2.5(a), Schedule 2.5(a) hereto
lists that rate for the periods specified.
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(b) Each Non-Convertible Debenture will bear interest at the rate of
13.00% per annum from and including the Issuance Date until and including
September 30, 2004, immediately after which date such rate of interest per annum
will automatically increase to 13.75% per annum, such rate of interest per annum
automatically increasing by an additional .75% per annum (any such increase
shall be cumulative with any such prior increase(s)) on October 1, 2005 and
again on each subsequent October 1 (the rate of interest in effect at any time
is hereinafter referred to as the "Non-Convertible Coupon Rate"), until the
principal thereof becomes due and payable, and on any overdue principal and (to
the extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the Non-Convertible Coupon Rate,
compounded quarterly, payable (subject to the provisions of Article XI)
quarterly in arrears on each Interest Payment Date, commencing on June 30, 2000,
to the Person in whose name such Non-Convertible Debenture or any Predecessor
Non-Convertible Debenture is registered, at the close of business on the record
date for such interest installment, which shall be the close of business on the
fifteenth day prior to that Interest Payment Date.
For purposes of demonstration of the rate of interest described in this
Section 2.5(b), Schedule 2.5(b) hereto lists that rate for the periods
specified.
(c) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any period shorter than a full quarterly period for which interest
is computed, will be computed on the basis of the actual number of days elapsed
per 30-day month. In the event that any date on which interest is payable on any
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) If at any time the Trust is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, the Company will pay as additional sums ("Additional Sums") such
additional amounts as shall be required so that the net amounts received and
retained by the Trust after paying any such taxes, duties, assessments or other
governmental charges will not be less than the amounts the Trust would have
received had no such taxes, duties, assessments or other government charges been
imposed so long as the Trust is the holder of the Debentures.
Section 2.6. Authentication and Delivery of Debentures. At any time and
from time to time after the execution and delivery of this Amended and Restated
Indenture, the Company may deliver Convertible Debentures in the aggregate
principal amount of up to $92,524,000 and Non-Convertible Debentures in the
aggregate principal amount of up to $62,126,000 executed by the Company to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery such Convertible Debentures or Non- Convertible
Debentures to or upon the written order of the Company, signed by both (i) the
chairman of its Board of Directors or any of its vice chairmen, or its president
or any vice president and (ii) its chief financial officer, treasurer or any
assistant treasurer or its secretary or any assistant secretary, without any
further action by the Company. In authenticating such Debentures and accepting
the additional responsibilities under this Amended and Restated Indenture in
relation to such Debentures, the Trustee shall be entitled to receive and
(subject to Section 6.1) shall be fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors
relating to the issuance of such Debentures, in each case certified by the
secretary or an assistant secretary of the Company;
(b) a supplemental indenture, if any;
(c) an Opinion of Counsel, prepared in accordance with Section 15.5,
which shall state that the Debentures have been duly authorized, and, 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 binding obligations of the Company enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
932388.8
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Notwithstanding the provisions of the preceding paragraph, if any of
the Debentures are not to be originally issued at one time, it shall not be
necessary to deliver the resolution of the Board of Directors and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Debenture if such documents are delivered at
or prior to the time of authentication upon original issuance of the first
Debentures to be issued. After the original issuance of the first Debenture to
be issued, any separate request by the Company that the Trustee authenticate
Debentures for original issuance will be deemed to be a certification by the
Company that it is in compliance with all conditions precedent provided for in
this Amended and Restated Indenture relating to the authentication and delivery
of such Debentures.
The Trustee shall have the right to decline to authenticate and deliver
any Debenture under this Section if the Trustee is advised by counsel in good
faith that the issuance of such Debenture would expose the Trustee to personal
liability or is unlawful.
Section 2.7. Execution of Debentures. Each Debenture shall be signed on
behalf of the Company by the chairman of its Board of Directors, or any of its
vice chairmen, or its president or any vice president and attested by its chief
financial officer, treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal. Such signatures may be the manual
or facsimile signatures of such officers. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Debentures. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Debenture that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Debentures shall cease to be such officer before the Debenture so signed shall
be authenticated and delivered by the Trustee or disposed of by the Company,
such Debenture nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Debenture had not ceased to be such officer of
the Company; and any Debenture may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Debenture, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Amended and Restated Indenture any such person was not such an
officer.
Section 2.8. Certificate of Authentication. Only such Debentures as
shall bear thereon a certificate of authentication substantially in the form
attached hereto as a part of Exhibit A or Exhibit B, as the case may be, and
executed by the Trustee by the manual signature of one of its authorized
signatories shall be entitled to the benefits of this Amended and Restated
Indenture or be valid or obligatory for any purpose. The execution of such
certificate by the Trustee upon any Debenture executed by the Company shall be
conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Amended and Restated Indenture.
Notwithstanding the foregoing, if any Debenture shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Debenture to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 15.5 and need not be accompanied by an Opinion of Counsel)
stating that such Debenture has never been issued and sold by the Company, for
all purposes of this Amended and Restated Indenture such Debenture shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Amended and Restated Indenture.
Section 2.9. Denomination and Date of Debentures; Payments of Interest.
Debentures shall be issuable in denominations of $1,000 and any integral
multiple thereof. The Debentures shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plans as the officers of
the Company executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Debenture shall be dated the date of its authentication.
The term "record date" as used with respect to any Interest Payment
Date (except for payment of defaulted interest) shall mean the close of business
on the fifteenth day preceding such Interest Payment Date, whether or not such
record date is a Business Day.
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Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date, subject to the
provisions of Article XI (called "defaulted interest" for purposes of this
Section) shall forthwith cease to be payable to the Holder on the relevant
record date by virtue of his having been such Holder; and such defaulted
interest may be paid by the Company, at its election in each case, as provided
in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any defaulted
interest to the persons in whose names any such Debentures (or their
respective predecessor Debentures) are registered at the close of
business on a special record date for the payment of such defaulted
interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Debentures 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 as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such defaulted interest in respect of Debentures
which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 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
thereof to be mailed, first class postage prepaid, to each Holder at
his address as it appears in the Security Register, not less than 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 mailed as aforesaid, such defaulted interest in respect of
Debentures shall be paid to the person in whose names such Debentures
(or their respective predecessor Debentures) are registered on such
special record date and such defaulted interest shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any defaulted interest on
the Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Amended and Restated Indenture upon transfer of or in
exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
In the case of any Convertible Debenture which is converted into shares
of Class A Common Stock after any record date and on or prior to the next
succeeding Interest Payment Date (other than any Convertible Debenture whose
Maturity is prior to such Interest Payment Date), interest whose Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Convertible Debenture (or one or more Predecessor Convertible Debentures) is
registered at the close of business on such record date. However, if a
redemption date falls between a record date and the subsequent Interest Payment
Date, the amount of such payment shall include accumulated and unpaid interest
accrued to, but excluding, such redemption date. Except as otherwise expressly
provided in the first two sentences of this paragraph, in the case of any
Convertible Debenture which is converted, interest whose Stated Maturity is
after the date of conversion of such Convertible Debenture shall not be payable.
Section 2.10. Registration, Transfer and Exchange. The provisions of
this Section 2.10 shall be subject in their entirety to the provisions of
Section 2.4. The Company will cause to be kept at each office or agency to be
maintained for the purpose as provided in Section 3.2 a register or registers
(herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company will provide for
the registration and the registration of the transfer or exchange of the
Debentures. The Trustee is hereby appointed and accepts the appointment as
Registrar (the "Registrar") for purposes of registering, and registering
transfers of, the Debentures.
Upon surrender for registration of transfer of any Debenture at any
such office or agency to be maintained for the purpose as provided in Section
3.2, the Company shall execute and the Trustee shall
932388.8
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authenticate and make available for delivery in the name of the transferee or
transferees a new Debenture or Debentures and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one Debenture
is executed, authenticated and delivered in respect of any Debenture so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Debentures shall equal the principal amount of the
Debenture presented in respect thereof) and conditions.
At the option of the Holder thereof, Debentures may be exchanged for a
Debenture or Debentures having authorized denominations and an equal aggregate
principal amount, upon surrender of such Debentures to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 3.2 and upon payment, if the Company shall so require, of the
charge hereinafter provided. Whenever any Debentures are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Debentures which the Holder making the exchange is entitled to
receive. All Debentures surrendered upon any exchange or transfer provided for
in this Amended and Restated Indenture shall be promptly canceled by the Trustee
and the Trustee will deliver a certificate of cancellation thereof to the
Company.
All Debentures issued upon any transfer or exchange of Debentures shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Amended and Restated Indenture, as the
Debentures surrendered upon such transfer or exchange.
Every Debenture presented or surrendered for registration of 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 Trustee duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Debentures, 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 Debentures, other than exchanges
pursuant to Sections 2.13, 8.5 or 10.5 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Debenture during a 15-day period prior to the day of mailing
of the relevant notice of redemption or (ii) to register the transfer of or
exchange any Debenture so selected for redemption in whole or in part, except,
in the case of any Debenture to be redeemed in part, the portion thereof not
redeemed.
Section 2.11. Mutilated, Defaced, Destroyed, Lost and Stolen
Debentures. In case any temporary or definitive Debenture shall become mutilated
or defaced or be destroyed, lost or stolen, then, in the absence of notice to
the Company or the Trustee that the Debenture has been acquired by a bona fide
purchaser, the Company shall execute, and upon the written request of any
officer of the Company, the Trustee shall authenticate and make available for
delivery a new Debenture and of like tenor and principal amount and with the
same terms and conditions, bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated or defaced Debenture or in lieu
of and substitution for the Debenture so destroyed, lost or stolen. In every
case the applicant for a substitute Debenture shall furnish to the Company and
to the Trustee and to any agent of the Company or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Debenture and of
the ownership thereof and in the case of mutilation or defacement shall
surrender the Debenture to the Trustee or such agent.
Upon the issuance of any substitute Debenture, 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 or its agent) connected therewith. In case any
Debenture which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Debenture, pay or
authorize, the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Debenture); provided, however, that the applicant for
such payment shall furnish to the Company and to the Trustee and any agent of
the Company or the Trustee such security or indemnity as any of them may require
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and the Trustee and any agent of
the Company or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Debenture and of the ownership thereof.
932388.8
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Every substitute Debenture issued pursuant to the provisions of this
Section by virtue of the fact that any Debenture is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Debenture shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Amended and Restated Indenture
equally and proportionately with any and all other Debentures duly authenticated
and delivered hereunder. All Debentures shall be held upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced, destroyed,
lost or stolen Debentures and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
Section 2.12. Cancellation of Debentures. Any Debenture surrendered for
payment, redemption, conversion, registration of transfer or exchange, or for
credit against any payment in respect of a sinking or analogous fund, shall, if
surrendered to the Company or any agent of the Company or the Trustee, be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be canceled by it; and no Debenture shall be issued in lieu thereof,
except as expressly permitted by any of the provisions of this Amended and
Restated Indenture. The Company may at any time deliver to the Trustee for
cancellation any Debentures previously authenticated hereunder which the Company
has not issued and sold and all Debentures so delivered shall be promptly
canceled by the Trustee. If the Company shall acquire any of the Debentures,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation. All canceled Debentures shall be
disposed of as directed by an order of the Company or, in the absence of such
order of the Company, in accordance with the Trustee's customary practices. The
Trustee shall provide a certificate of destruction to the Company with respect
to all Convertible Debentures disposed of by the Trustee.
Section 2.13. Temporary Debentures. Pending the preparation of
definitive Debentures, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Debentures (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
reasonably acceptable to the Trustee). Temporary Debentures shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Debentures but with such omissions, insertions and variations as may be
appropriate for temporary Debentures, all as may be determined by the Company
with the reasonable concurrence of the Trustee. Temporary Debentures may contain
such reference to any provisions of this Amended and Restated Indenture as may
be appropriate. Every temporary Debenture shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Debentures. Without
unreasonable delay the Company shall execute and shall furnish definitive
Debentures and thereupon temporary Debentures may be surrendered in exchange
therefor without charge to the Holder at each office or agency to be maintained
by the Company for that purpose pursuant to Section 3.2, and the Trustee shall
authenticate and make available for delivery in exchange for such temporary
Debentures an equal aggregate principal amount of definitive Debentures of
authorized denominations. Until so exchanged, the temporary Debentures shall be
entitled to the same benefits under this Amended and Restated Indenture as
definitive Debentures.
ARTICLE III
COVENANTS OF THE COMPANY
Section 3.1. Payment of Principal and Interest. The Company covenants
and agrees for the benefit of the Debentures that it will duly and punctually
pay or cause to be paid the principal of, and interest on, each of the
Debentures in accordance with the terms of such Debentures and of this Amended
and Restated Indenture. The interest on Debentures (together with any additional
amounts payable pursuant to the terms of such Debentures) shall be payable only
to or upon the written order of the Holders thereof and at the option of the
Company may be paid by wire transfer or by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses as
they appear on the Security Register.
Section 3.2. Offices for Payment, etc. So long as any of the Debentures
remain outstanding, the Company will maintain the following: an office or agency
in the Borough of Manhattan, City of New York (a) where the Debentures may be
presented for payment, (b) where the Debentures may be presented for
registration of transfer and for exchange as provided in this Amended and
Restated Indenture, and (c) where notices and demands may be served upon the
Company in respect of the Debentures, or this Amended and Restated Indenture.
932388.8
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The Company will give to the Trustee written notice of the location of
any such office or agency and of any change of location thereof. In case the
Company shall fail to so designate or maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office. The Trustee is hereby appointed, and accepts its
appointment as, Paying Agent.
Section 3.3. Paying Agents. Whenever the Company shall appoint a Paying
Agent other than the Trustee with respect to the Debentures of any series, it
will cause such Paying Agent 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:
(a) that it will hold all sums received by it as such Paying Agent for
the payment of the principal of or interest on the Debentures of any series
(whether such sums have been paid to it by the Company or by any other obligor
on such Debentures) in trust for the benefit of the Holders of Debentures of
such series or of the Trustee, and upon the occurrence of an Event of Default
and upon the written request of the Trustee, pay over all such sums received by
it to the Trustee; and
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Debentures) to make any payment of the principal
of or interest on the Debentures when the same shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Debentures, deposit in a timely manner with the Paying Agent a
sum sufficient to pay such principal or interest so becoming due (such deposit
with respect to the Convertible Debentures to be made separately from such
deposit with respect to the Non-Convertible Debentures), and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Debentures, it will, on or before each due date of the principal of or interest
on the Debentures, set aside, segregate and hold in trust for the benefit of the
holders of the Convertible Debentures and, separately, the holders of the
Non-Convertible Debentures, a sum sufficient to pay such principal or interest
so becoming due. The Company will promptly notify the Trustee of any failure to
take such action.
Section 3.4. Written Statement to Trustee. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a brief certificate (which need not comply with
Section 15.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under this Amended and Restated
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Amended and Restated
Indenture), and if the Company shall not be in compliance, specifying all such
defaults or non-compliance and the nature and status thereof.
Section 3.5. Limitation on Dividends; Transactions with Affiliates.
(a) If any Debentures of any series are outstanding and (i) there shall
have occurred any Event of Default or any event that, with the giving of notice
or lapse of time or both, would constitute an Event of Default, (ii) the
Guarantor shall be in default with respect to its payment or other obligations
under the Preferred Securities Guarantee or the Common Securities Guarantee, or
(iii) the Company shall have given notice of its election to defer payments of
interest on any of the Debentures by extending the interest payment period in
accordance with the terms of this Amended and Restated Indenture and such
period, or any extension thereof, shall be continuing, then the Company shall
not (a) declare or pay any dividend on, make any distribution with respect to,
or redeem, purchase or make a liquidation payment with respect to, any of its
Capital Stock or (b) make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities issued by the Company that
rank pari passu with or junior in interest to the Debentures of any series or
make any guarantee payments with respect to any guarantee by the Company of the
debt securities of any subsidiary of the Company if such guarantee ranks pari
passu with or junior in interest to the Debentures of any series (other than (i)
as a result of a reclassification of the Capital Stock of the Company or the
exchange or conversion of one class or series of the Capital Stock of the
Company for another class or series of the Capital Stock of the Company, (ii)
the purchase of fractional interests in shares of the Capital Stock of the
Company pursuant to the conversion or
932388.8
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exchange provisions of such Capital Stock or the security being converted into
or exchanged for such Capital Stock, (iii) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan effecting a
"poison pill," or the issuance of Capital Stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (v)
payments under the Trust Securities Guarantees, (vi) purchases of shares of
Common Stock related to the issuance of Common Stock or rights under any of the
Company's benefit plans for its directors, officers or employees and (vii)
obligations under any dividend reinvestment and stock purchase plans). For
avoidance of doubt, the provisions of this Section shall not impair the ability
of the Company to subdivide its Common Stock into a greater number of shares.
(b) The Company hereby agrees that, prior to March 31, 2002, without
the prior written consent of the holders of a majority in liquidation amount of
the CTP Securities, the Company shall not declare or pay a dividend or other
distribution out of retained earnings or capital surplus in each case as
determined in accordance with GAAP (i.e. dividends or distributions may only be
paid from current earnings and net income); provided, however, that the
foregoing agreement shall not apply to dividends or other distributions that are
required to be made in order to enable the Company to comply with the
requirements of Section 857(a) of the Internal Revenue Code of 1986, as amended
(relating to eligibility for REIT status) following a determination by the
Company to elect to be taxed as a REIT.
Section 3.6. Covenants as to CT Trust. For so long as the Trust
Securities remain outstanding, the Company will (a) maintain 100% direct or
indirect ownership of the Common Securities of CT Trust; provided, however, that
any permitted successor of the Company under this Amended and Restated Indenture
may succeed to the Company's ownership of the Common Securities, (b) use its
best efforts to cause CT Trust (i) to remain a statutory business trust, except
in connection with the distribution of Debentures to the holders of Trust
Securities in liquidation of CT Trust, the redemption of all of the Trust
Securities of CT Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration, and (ii) to continue to be classified as a
grantor trust for United States federal income tax purposes and (c) use its best
efforts to cause each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Debentures.
Section 3.7. Existence. Subject to Article IX, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 3.8. Rule 144A Information. For so long as any Debentures are
outstanding, in order to render the Debentures eligible for resale pursuant to
Rule 144A, while any of the Debentures are "restricted securities" (as such term
is defined in Rule 144(a)(3) under the Securities Act), the Company will make
available, upon request, to any Holder or any prospective purchasers of the
Debentures the information specified in paragraph (d)(4) of Rule 144A, unless
the Company is then subject to Section 13 or 15(d) of the Exchange Act.
ARTICLE IV
HOLDERS OF DEBENTURES LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 4.1. Company to Furnish Trustee Information as to Names and
Addresses of Holders of Debentures. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Debentures:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Debentures, as hereinabove specified, as of such
record date, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request, such
list to be as of a date not more than 15 days prior to the time such information
is furnished,
provided that if and so long as the Trustee shall be the Registrar, such list
shall not be required to be furnished.
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Section 4.2. Preservation and Disclosure of Holders of Debentures'
Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Debentures contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of any Debentures (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Debenture for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debentures (in which case the applicants must all hold Debentures) or with
Holders of all Debentures with respect to their rights under this Amended and
Restated Indenture or under such Debentures and such application is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of a series of Debentures or of all Debentures, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, as to the approximate cost of mailing
to such Holders of Debentures the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Debentures or all Holders of a series of
Debentures, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Debentures or could be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of such order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders of Debentures with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Each and every Holder of a Debenture, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Debentures in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
Section 4.3. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents, and other reports (or copies of such portions and
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act, or if
the Company is not required to file information, documents, or reports pursuant
to either of such Sections, then to file with the Trustee and the Commission to
the extent permitted, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to Section 13
of the Exchange Act, in
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respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Amended and
Restated Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Debentures in the manner and
to the extent required by Sections 6.6 and 15.4, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents, and
reports required to be filed by the Company pursuant to subsections (a) and (b)
of this Section as may be required to be transmitted to such Holders by rules
and regulations prescribed from time to time by the Commission.
ARTICLE V
REMEDIES OF THE TRUSTEE AND HOLDERS OF
DEBENTURES ON EVENT OF DEFAULT
Section 5.1. Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Debentures of any series,
wherever used herein, means any one or more of the following events which shall
have occurred and be continuing (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 (including any Additional
Sums and Compound Interest) upon or any additional amounts payable in respect of
any Debentures of any series when it becomes due and payable, and continuance of
such default for a period of 30 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of
this Amended and Restated Indenture shall not constitute a default in the
payment of interest for this purpose; or
(b) default in the payment of the principal of, or premium, if any, on,
any Debentures of any series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise; or
(c) default in the performance, or breach of any covenant or warranty
of the Company contained in any series of Debentures or in this Amended and
Restated Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 30 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Debentures of such series 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) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of all or 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 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding
932388.8
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against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state 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 similar official of the Company or of all or any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(f) failure by the Company to convert Convertible Debentures into
shares of Common Stock upon an appropriate election by a holder of Trust
Securities or Convertible Debentures to convert such Trust Securities or
Convertible Debentures, as the case may be, into such shares of Common Stock
(whether or not conversion or exchange is prohibited by the subordination
provisions set forth herein); or
(g) the CT Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in connection
with (i) the distribution of any Debentures to holders of Trust Securities in
liquidation of their interest in the CT Trust upon the occurrence of a Special
Event or upon the occurrence of events as described in Section 3 of Annex I to
the Declaration, (ii) the redemption of all of the outstanding Trust Securities
of the CT Trust, (iii) the conversion of all outstanding Convertible Preferred
Securities into shares of Common Stock or (iv) certain mergers, consolidations
or amalgamations, each as permitted by the Declaration; or
(h) the Company shall have consummated a merger or consolidation in
which the successor will be taxed as a partnership for federal income tax
purposes, or the Company shall have transferred all or substantially all of its
assets to an entity other than a Subsidiary which shall be taxed as a
partnership for federal income tax purposes.
If an Event of Default in respect of a series of Debentures occurs and
is continuing, then and in each and every such case, unless the principal of all
Debentures shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Debentures of
such series then Outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by such Holders), may declare the entire principal of,
plus accrued and unpaid interest on, all the Debentures of such series
(including Additional Sums, if any, and, to the extent permitted by applicable
law, Compound Interest, if any) and any other amounts payable under this Amended
and Restated Indenture to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable.
These provisions, however, are subject to the condition that if at any time
after the principal and other amounts due on any of the Debentures shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all the
Debentures of such series and the principal of any and all Debentures of such
series which shall have become due otherwise than by such acceleration (with
interest upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, Compound Interest to the date of such payment)
or deposit in Dollars such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel and all other
expenses and liabilities incurred, and all advances with interest made, by the
Trustee, its agents, attorneys and counsel and if any and all defaults under
this Amended and Restated Indenture, other than the nonpayment of the principal
and interest of Debentures of such series which shall have become due by such
acceleration, shall have been cured or waived as provided herein, then and in
every such case the Holders of a majority in aggregate principal amount of the
Debentures of such series then Outstanding, by written notice to the Company and
to the Trustee for the Debentures, may waive all defaults and rescind and annul
such declaration and its consequences; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
Section 5.2. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Company covenants that (a) in case default shall be made in the
payment of any installment of interest on the Debentures of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of all or any part of the principal of the Debentures of any series when
the same shall have become due and payable, whether upon Maturity or upon any
redemption or by declaration or otherwise, then upon demand of the Trustee for
the Debentures, the Company will pay to the Trustee for the benefit of the
Holder of such Debentures the whole amount that then shall have become due and
payable on such Debentures for principal of or interest, as the case may be
(with interest to the date of such payment upon the overdue principal and, to
the extent that payment of such interest is enforceable
932388.8
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under applicable law, on overdue installments of interest at the same rate as
the rate of interest specified in such Debentures); and in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to, and all expenses and
liabilities incurred and all advances with interest made by, the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the
principal of and interest on such Debentures to the persons entitled thereto,
whether or not the principal of and interest on such Debentures are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Debentures, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
other obligor upon such Debentures and collect in the manner provided by law out
of the property of the Company or other obligor upon such Debentures, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Debentures under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Debentures, or to the property of the Company or such
other obligor, the Trustee, irrespective of whether the principal of any
Debentures shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Debentures, and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable compensation
to, and all expenses and liabilities incurred and all advances with interest
made by, the Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, except as a result of negligence or bad faith) and of the
Holders of Debentures allowed in any judicial proceedings relative to the
Company or other obligor upon all Debentures, or to the property of the Company
or such obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders of Debentures and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Holders of Debentures to make
payments to the Trustee for the Debentures, and, in the event that such Trustee
shall consent to the making of payments directly to the Holders of Debentures,
to pay to such Trustee such amounts as shall be sufficient to cover reasonable
compensation to, and all expenses and liabilities incurred and all advances with
interest made by, such Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel and all other amounts due to such Trustee or any
predecessor Trustee pursuant to Section 6.7, except as a result of Trustee's
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Debenture any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of Debentures in any
such proceeding.
All rights of action and of asserting claims under this Amended and
Restated Indenture, or under any of the Debentures, may be enforced by the
Trustee for the Debentures without the possession of any of the Debentures or
the production thereof at any trial or other proceedings relative thereto, any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Debentures in respect of which such action
was taken.
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In any proceedings brought by the Trustee for the Debentures (and also
any proceedings involving the interpretation of any provision of this Amended
and Restated Indenture to which the Trustee shall be a party), the Trustee shall
be held to represent all the Holders of the Debentures in respect to which such
action was taken, and it shall not be necessary to make any Holders of such
Debentures parties to any such proceedings.
Section 5.3. Application of Proceeds. Any moneys collected by the
Trustee for the Debentures pursuant to this Article in respect of the Debentures
shall be applied in the following order at the date or dates fixed by such
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Debentures in respect of which
moneys have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Debentures in reduced principal amounts in exchange for the
presented Debentures if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of costs and expenses applicable in
respect of which moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all
advances with interest made by, the Trustee and each predecessor
Trustee and their respective agents and attorneys and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 6.7,
except as a result of Trustee's negligence or bad faith;
SECOND: To the payment of the amounts then due and unpaid for
interest on the Debentures for which principal is not yet due and
payable in respect of which moneys have been collected, such payments
to be made ratably to the persons entitled thereto, without
discrimination or preference, according to the amounts then due and
payable on such Debentures for interest;
THIRD: To the payment of the amounts then due and unpaid for
principal of and interest on the Debentures for which principal is due
and payable in respect of which moneys have been collected, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference, according to the amounts then due and
payable on such Debentures of principal and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
Section 5.4. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee for the Debentures or any Holder shall have proceeded to
enforce any right under this Amended and Restated Indenture and such proceedings
shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to the determination in any such proceeding, the Company, the
Trustee and the Holders shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Company, the
Trustee and the Holders shall continue as though no such proceedings had been
taken.
Section 5.5. Limitations on Suits by Holders of Debentures. No Holder
of any Debenture of a series shall have any right by virtue or by availing of
any provision of this Amended and Restated Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under with
respect to this Amended and Restated Indenture, or for the appointment of a
trustee, receiver, liquidator, custodian or other similar official or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of any Event of Default with respect to the Debentures of
such series and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the
Debentures of such series then Outstanding shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity, as it
may require, against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee during such 60 day period by Holders of a majority in
aggregate principal amount of the Debentures of such series then Outstanding; it
being understood and intended, and being expressly covenanted by the taker and
Holder of every Debenture of such series with every other taker and Holder of a
Debenture of such series and the Trustee, that no one or more Holders of
Debentures of such series shall have any right in any manner whatever, by virtue
or by availing of any provision of this Amended and Restated Indenture to
affect, disturb or prejudice the rights of any other such Holder of Debentures
of such series, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Amended and Restated
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Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all such Holders of Debentures.
Section 5.6. Unconditional Right of Holders of Debentures to Institute
Certain Suits. Notwithstanding any provision in this Amended and Restated
Indenture and any provision of any Debenture, the right of any Holder of any
Debenture to receive payment of the principal of and (subject to Section 2.9 and
Article XI) interest on such Debenture at the respective rates, in the
respective amount on or after the respective due dates expressed in such
Debenture, and to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 5.7. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 2.11 and Section 5.5, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders of
any Debentures is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any Debentures
to exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.5, every power and remedy given by this
Amended and Restated Indenture or by law to the Trustee or to the Holders of
Debentures may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or any Holders of any Debentures.
Section 5.8. Control by Holders of Debentures. The Holders of a
majority in aggregate principal amount of the Debentures of any series at the
time Outstanding 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 with respect to the Debentures of
such series by this Amended and Restated Indenture; provided that such direction
shall not be in conflict with any rule of law or the provisions of this Amended
and Restated Indenture; and provided further that the Trustee, being advised by
counsel, shall have the right to decline to follow any such direction if the
Trustee shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forbearance specified in or pursuant to such
direction would be unduly prejudicial to the interest of Holders of the
Debentures of such series not joining in the giving of said direction.
Section 5.9. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Debentures of any series at the
time Outstanding may on behalf of the Holders of all the Debentures of such
series waive any past default hereunder or its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or any
interest on any Debenture of such series as and when the same shall become due
by the terms of the Debentures of such series otherwise than by acceleration
(unless such default has been cured and sums sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 5.1)), or
(b) in respect of a covenant or provision hereof which under Article
VIII cannot be modified or amended without the consent of the Holder of each
Outstanding Debenture of such series affected;
provided, however, that if the Debentures of such series are held by the CT
Trust or the Institutional Trustee of such Trust and are Convertible Debentures,
such waiver or modification to such waiver shall not be effective until the
holders of a majority in aggregate liquidation amount of Convertible Amount of
Trust Securities of the CT Trust shall have consented to such waiver or
modification to such waiver; provided, further, that if the Debentures of such
series are held by the CT Trust or the Institutional Trustee of such Trust and
are Non-Convertible Debentures, such waiver or modification to such waiver shall
not be effective until the holders of a majority in aggregate liquidation amount
of Non-Convertible Amount of Trust Securities of the CT Trust shall have
consented to such waiver or modification to such waiver; provided further, that
if the consent of the Holder of each Outstanding Convertible Debenture is
required, such waiver shall not be effective until each holder of Convertible
Amount of Trust Securities of the CT Trust shall have consented to such waiver
and, if the consent of the Holder of each Outstanding Non-Convertible Debenture
is required, such waiver shall not be effective until each holder of
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Non-Convertible Amount of Trust Securities of the CT Trust shall have consented
to such waiver. A failure to deliver shares of Class A Common Stock upon a
conversion of Convertible Debentures pursuant to Article XII hereof shall be
deemed a failure to pay principal for all purposes under this Amended and
Restated Indenture.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Amended and Restated Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
Section 5.10. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Amended and Restated Indenture agree, and each Holder
of any Convertible Debenture, by his 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 Amended and Restated Indenture or
in any suit against the Trustee for any action taken, suffered 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 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder of Debentures or group of Holders of Debentures holding
in the aggregate more than 10% in principal amount of the Outstanding
Convertible Debentures with respect to a suit relating to the Convertible
Debentures or holding in the aggregate more than 10% in principal amount of the
Outstanding Non-Convertible Debentures with respect to a suit relating to the
Non-Convertible Debentures, or to any suit instituted by a Holder of Debentures
for the enforcement of the payment of the principal of or interest on such
Debenture on or after the due date expressed in such Debenture or any date fixed
for redemption.
Section 5.11. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Amended and Restated Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Amended and
Restated Indenture or in aid of the exercise of any power granted in this
Amended and Restated Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Amended and Restated Indenture or by law.
Section 5.12. Unconditional Right of Holders of Debentures to Receive
Principal and Interest and of Holders of Convertible Debentures to Convert.
(a) Notwithstanding any other provision in this Amended and Restated
Indenture, the Holder of any Convertible Debenture shall have the right, which
is absolute and unconditional, to receive payment of the principal of and
interest (including Compound Interest and Additional Sums, if any) on such
Convertible Debenture on the respective Stated Maturities expressed in such
Convertible Debenture (or, in the case of redemption, on the redemption date)
and to convert such Convertible Debenture in accordance with Article XII and to
institute suit for the enforcement of any such payment and right to convert, and
such rights shall not be impaired without the consent of such Holder. If the
Institutional Trustee is the sole Holder of the Convertible Debentures, any
holder of Convertible Amount of the Convertible Preferred Securities shall have
the right to institute suit on behalf of the Trust for the enforcement of any
such payment and right to convert. The Company may not amend this Amended and
Restated Indenture to remove the foregoing right to institute a suit directly
against the Company without the prior written consent of the holders of all of
the Convertible Amount of the Convertible Preferred Securities. If the right to
institute a suit directly against the Company is removed following the
effectiveness of a registration statement in respect of the Convertible
Debentures, the Trust may become subject to the reporting obligations under the
Exchange Act. The Company shall have a right of set-off to the extent of any
payments made by the Company to such Holder in any such suit.
(b) Notwithstanding any other provision in this Amended and Restated
Indenture, the Holder of any Non-Convertible Debenture shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
interest (including Compound Interest and Additional Sums, if any) on such
Non-Convertible Debenture on the respective Stated Maturities expressed in such
Non-Convertible Debenture (or, in the case of redemption, on the redemption
date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder. If the
Institutional Trustee is the sole Holder of the Non-Convertible Debentures, any
holder of Non-Convertible Amount of the Convertible Preferred Securities shall
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have the right to institute suit on behalf of the Trust for the enforcement of
any such payment. The Company may not amend this Amended and Restated Indenture
to remove the foregoing right to institute a suit directly against the Company
without the prior written consent of the holders of all of the Non-Convertible
Amount of the Convertible Preferred Securities. If the right to institute a suit
directly against the Company is removed following the effectiveness of a
registration statement in respect of the Non-Convertible Debentures, the Trust
may become subject to the reporting obligations under the Exchange Act. The
Company shall have a right of set-off to the extent of any payments made by the
Company to such Holder in any such suit.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1. Duties of the Trustee.
(a) If an Event of Default has occurred and is continuing with respect
to the Debentures of any series, the Trustee shall exercise the rights and
powers vested in it by this Amended and Restated 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 his or her own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Debentures of any series:
(i) the Trustee need perform only those duties that are
specifically set forth in this Amended and Restated Indenture and no
others; 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 on their face to the
requirements of this Amended and Restated Indenture. However, in the
case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform on their face to the requirements of this Amended and
Restated Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent failure to act or its own willful misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.8.
(d) Every provision of this Amended and Restated Indenture that in any
way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of
this Section 6.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 6.2. Rights of Trustee. Subject to Section 6.1 and the
provisions of the Trust Indenture Act:
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(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(d) The Trustee may consult with counsel of its selection 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 in accordance with such
advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Amended and Restated Indenture at the
request or direction of any of the Holders pursuant to this Amended and Restated
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 6.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Debentures
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar or co-
Registrar may do the same with like rights. However, the Trustee must comply
with Sections 6.10 and 6.11.
Section 6.4. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Amended and Restated Indenture or the
Debentures, it shall not be accountable for the Company's use of the proceeds
from the Debentures and it shall not be responsible for any statement in the
registration statement for the shares of Common Stock into which the Convertible
Debentures are convertible under the Securities Act or in this Amended and
Restated Indenture or the Debentures (other than its certificate of
authentication).
Section 6.5. Notice of Defaults. If a default occurs and is continuing
with respect to any Debentures of a series and if it is known to the Trustee
through oral or written notice to a Responsible Officer, the Trustee shall give
to each Holder of Debentures of such series notice of the default within 90 days
after such default occurs. Except in the case of a default described in Section
5.1(a) or (b), the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice
is in the interest of Holders of Debentures of such series.
Section 6.6. Reports by Trustee to Holders. Within 60 days after each
December 31 beginning with the December 31 following the date of this Amended
and Restated Indenture, the Trustee shall mail to each Holder of Debentures and
each other person specified in TIA Section 313(c) a brief report dated as of
such December 31 that complies with TIA Section 313(a) to the extent required
thereby. The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Holders of
Debentures shall be filed with the Commission and each securities exchange on
which the Debentures are listed. The Company agrees promptly to notify the
Trustee whenever the Debentures become listed on any securities exchange and of
any delisting thereof.
Section 6.7. Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time in Dollars such
compensation as shall be agreed to in writing between the Company and the
Trustee for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust);
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(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances with interest thereon incurred or made by
the Trustee in accordance with any provision of this Amended and Restated
Indenture (including the reasonable compensation and the expenses, advances with
interest thereon and disbursements of its agents and counsel), except to the
extent any such expense, disbursement or advance may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder (including the reasonable compensation and the
expenses, advances with interest thereon and disbursements of its agents and
counsel), except to the extent that any such loss, liability or expense may be
attributable to its negligence or bad faith.
As security for the performance of the obligations of the Company in
this Section 6.7, the Trustee shall have a lien prior to the Debentures on all
money or property held or collected by the Trustee, except that held in trust to
pay the principal of or interest, if any, on particular Debentures.
"Trustee" for purposes of this Section 6.7 includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
survive the discharge of this Amended and Restated Indenture. When the Trustee
incurs expenses after the occurrence of a default specified in Sections 5.1(d)
and 5.1(e), such expenses are intended to constitute expenses of administration
under bankruptcy law.
Section 6.8. Replacement of Trustee. The Trustee may resign at any time
with respect to the Debentures by so notifying the Company; provided, however,
no such resignation shall be effective until a successor Trustee has accepted
its appointment pursuant to this Section 6.8. The Holders of a majority in
aggregate principal amount of the Outstanding Debentures may remove the Trustee
at the time outstanding by so notifying the Trustee and the Company. The Company
shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Debentures, the Company
shall promptly appoint, by resolution of its Board of Directors, a successor
Trustee with respect to the Debentures.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Amended and Restated Indenture with respect to the Debentures. The
successor Trustee shall mail a notice of its succession to Holders of Debentures
so affected. The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in
Section 6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Debentures at the
time Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Holder of
Debentures may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
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Section 6.9. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 6.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and Section 310(a)(5).
The Trustee shall have combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b).
Section 6.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
CONCERNING THE HOLDERS OF DEBENTURES
Section 7.1. Evidence of Action Taken by Holders of Debentures.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Amended and Restated Indenture to be
given or taken by a specified percentage in principal amount of the Holders of
Debentures (or any series thereof) may be embodied in and evidenced by one or
more instruments or substantially similar tenor signed by such specified
percentage of Holders of Debentures (or series thereof) in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Amended
and Restated Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Article.
(b) The ownership of such Debentures shall be proved by the Security
Register.
Section 7.2. Proof of Execution of Instruments. Subject to Sections 6.1
and 6.2, the execution of any instrument by a Holder of any Debentures or his
agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
Section 7.3. Holders to be Treated as Owners. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the person in
whose name any Debenture shall be registered upon the Security Register as the
absolute owner of such Debenture (whether or not such Debenture shall be overdue
and notwithstanding any notification of ownership or other writing thereon) for
the purpose of receiving payment of or on account of the principal of and
(subject to Section 2.9) interest on such Debenture and for all other purposes;
and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
Section 7.4. Debentures Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Debentures (or series thereof) have concurred in any direction,
consent or waiver under this Amended and Restated Indenture, a Debenture which
is owned by the Company or any other obligor on the Debentures with respect to
which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Debentures with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination (it being understood that
VRLP and any Affiliate of Vornado Realty Trust or VRLP and EOPLP and any
Affiliate of Equity Office Properties Trust or EOPLP shall not be deemed to be
under common control with the Company), except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Debentures which the Trustee knows are so
owned shall be so disregarded. Debentures so owned which 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
Debentures and that the pledgee is not the Company or any other obligor upon the
Debentures or any person directly or indirectly controlling or
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controlled by or under direct or indirect common control with the Company or any
other obligor on the Debentures.
Section 7.5. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Debentures (or series thereof), as the case may be, specified in
this Amended and Restated Indenture in connection with such action, any Holder
of a Debenture the serial number of which is shown by the evidence to be
included among the serial numbers of the Debentures (or series thereof) the
Holders of which have consented to such action may, by filing written notice at
the Corporate Trust Office and upon proof of holding as provided in this
Article, revoke such action so far as concerns such Debenture. Except as
aforesaid any such action taken by the Holder of any Debentures shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Debenture and of any Debentures issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Debenture. Any action taken by the Holders of the percentage in
aggregate principal amount of the Debentures (or series thereof), as the case
may be, specified in this Amended and Restated Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Debentures affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of Holders of
Debentures. The Company, when authorized by a resolution of its Board of
Directors and the Trustee for the Debentures may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to such Trustee, for one or more of
the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Debentures any property or assets;
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article IX;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of all
Debentures;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
arising under this Amended and Restated Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and which
shall not materially and adversely affect the interests of the Holders of any of
the Debentures; or
(e) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Debentures.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Amended and Restated Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Debentures at
the time Outstanding, notwithstanding any of the provisions of Section 8.2.
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Section 8.2. Supplemental Indentures With Consent of Holders of
Debentures. With the consent (evidenced as provided in Article VII) of the
Holders of not less than a majority in aggregate principal amount of the
Debentures at the time Outstanding of each series that will be affected thereby,
the Company, when authorized by a resolution of its Board of Directors, and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Amended and Restated Indenture or of any supplemental
indenture or of modifying in any manner the rights of all Holders of Debentures
of such series; provided, however, that no such supplemental indenture shall (a)
except to the extent permitted by Article XI, extend the Stated Maturity of any
Debenture, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or make the principal thereof or interest
thereon payable in any coin or currency other than that provided in the
Debentures or in accordance with the terms thereof, or impair or affect the
right of any Holder of a Debenture to institute suit for payment thereof, or
adversely affect the right to convert Convertible Debentures, or modify the
subordination provisions of this Amended and Restated Indenture in any manner
adverse to a Holder of a Debenture without the consent of the Holders of each
Debenture so affected, or (b) reduce the aforesaid percentage of Debentures, the
consent of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Debenture so affected; provided
further, that no such supplemental indenture shall result in the realization of
unrelated business income for the Holders of the Debentures without the consent
of each Holder of a Debenture.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or assistant secretary of
the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders of
Debentures as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Company in the execution of such supplemental
indenture or otherwise, in which case such Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Amended and Restated
Indenture or otherwise.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Amended and Restated Indenture which has expressly been
included solely for the benefit of one or more particular series of Debentures,
or which modifies the rights of the Holders of Debentures of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Amended and Restated Indenture of the Holders of any other
series.
It shall not be necessary for the consent of the Holders of Debentures
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice thereof to the Holders of then Outstanding Debentures, by
mailing a notice thereof by first-class mail to such Holders at their addresses
as they shall appear on the Security Register, and in each case such notice
shall set forth in general terms the substance of such supplemental indenture.
Any failure of the Company to give such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 8.3. Effect of Supplemental Indenture. Every supplemental
indenture executed pursuant to this Article VIII shall conform to the
requirements of the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Amended and Restated Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Amended and Restated Indenture of the Trustee, the Company and the
Holders of Debentures shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be a part of the terms and conditions of this Amended and Restated
Indenture for any and all purposes.
Section 8.4. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Section 6.1 and 6.2, shall receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any
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supplemental indenture executed pursuant to this Article VIII complies with the
applicable provisions of this Amended and Restated Indenture.
Section 8.5. Notation on Debentures in Respect of Supplemental
Indentures. Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article VIII may bear,
upon the direction of the Company, a notation in form satisfactory to the
Trustee for the Debentures as to any matter provided for by such supplemental
indenture. If the Company or the Trustee shall so determine, new Debentures so
modified as to conform, in the opinion of the Trustee and the Company, to any
modification of this Amended and Restated Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Debentures then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1. Company May Consolidate, etc., on Certain Terms. The
Company may sell, transfer, lease or otherwise convey all or substantially all
of its assets on a consolidated basis to any Person, or consolidate or merge
with or into, any other Person, provided that in any such case, (a) either (i)
the Company shall be the continuing corporation, or (ii) if the Company is not
the continuing corporation, the successor corporation or Person which acquires
by sale, transfer, lease or other conveyance all or substantially all of the
assets of the Company, shall be a corporation organized and validly existing
under the laws of the United States of America or any state thereof or the
District of Columbia and shall expressly assume the due and punctual payment of
the principal of, premium, if any, and interest (including Additional Sums and
Compound Interest) on all of the Debentures according to their tenor, and the
due and punctual performance and observance of all of the covenants, agreements
and conditions of this Amended and Restated Indenture to be performed or
observed by the Company by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation or entity, by
amendment thereto, (b) immediately after such merger or consolidation, or such
sale, transfer, lease or other conveyance, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing, (c) so long as there remain outstanding
any Non-Convertible Debentures, immediately after giving effect to such
transaction (or series of transactions), the Consolidated Net Worth of the
Company (or the successor company thereto under this Amended and Restated
Indenture) is equal to or greater than that of the Company immediately prior to
the transaction (or series of transactions), and (d) the Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that the requirements of this Section have been complied with.
Section 9.2. Successor Corporation Substituted. In case of any such
consolidation, merger, sale, transfer, or conveyance (but not in the case of any
such lease), and following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein, and the Company shall be
discharged from all obligations and covenants under this Amended and Restated
Indenture and the Debentures and may be liquidated and dissolved. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Company any or all of the Debentures issuable hereunder which
theretofore shall not have been signed by the Company and be delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this Amended
and Restated Indenture prescribed, the Trustee shall authenticate and shall make
available for delivery any Debentures which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication,
and any Debentures, which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All of the Debentures
so issued shall in all respects have the same legal rank and benefit under this
Amended and Restated Indenture as the Debentures theretofore or thereafter
issued in accordance with the terms of this Amended and Restated Indenture as
though all of such Debentures had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, transfer, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Debentures thereafter to be issued as may be appropriate.
Section 9.3. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Section 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 15.5, as conclusive evidence
932388.8
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that any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Amended and Restated Indenture.
ARTICLE X
REDEMPTION OF THE DEBENTURES
Section 10.1. Tax Event Redemption.
(a) If a Tax Event (as defined in the Declaration) has occurred and is
continuing and:
(i) the Company has received a Redemption Tax Opinion (as
defined in the Declaration); or
(ii) after receiving a Dissolution Tax Opinion (as defined in
the Declaration), the Regular Trustees shall have been informed by tax
counsel rendering the Dissolution Tax Opinion that a No-Recognition
Opinion (as defined in the Declaration) cannot be delivered to the
Trust,
then, notwithstanding Section 10.2(a) but subject to Section 10.2(b), the
Company shall have the right upon not less than 30 days nor more than 60 days
notice to the Holders of the Convertible Debentures to redeem the Convertible
Debentures, in whole or in part, for cash within 90 days following the
occurrence of such Tax Event (the "90-Day Period") at a redemption price equal
to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption Price"),
provided that if at the time there is available to the Company or the Trust the
opportunity to eliminate, within the 90-Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no adverse
effect on the Company, the Trust or the Holders of the Trust Securities issued
by the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption. If a redemption pursuant to the provisions of this Section 10.1
occurs on or before September 30, 2003, the Company shall provide notice of the
redemption 90 days prior to redemption (the "Early Tax Redemption Date") and pay
to the Holders of the Convertible Debentures on such date the Adjusted
Redemption Price as determined pursuant to the provisions of paragraph (b) of
this Section 10.1, provided that if the Adjusted Redemption Price is determined
to be less than the Redemption Price, the Company shall instead pay the
Redemption Price to the Holders of Convertible Debentures. The Redemption Price
or the Adjusted Redemption Price, as the case may be, shall be paid prior to
12:00 noon, New York time, on the date of such redemption or such earlier time
as the Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price or the Adjusted
Redemption Price prior to the redemption date.
(b) For purposes of this Section 10.1, the Adjusted Redemption Price
shall be calculated pursuant to the provisions of this Section 10.1(b). Within
10 days after the date of notice of redemption has been provided, the Company
and the Majority Holders shall each appoint a nationally recognized "bulge
bracket" independent investment banking firm experienced in the valuation of
businesses and their securities (each an "Experienced Appraiser") (the two
Experienced Appraisers appointed by the Company and the Majority Holders are
hereinafter referred to collectively as the "Initial MWA Experienced
Appraisers") to objectively determine the fair market value of the Convertible
Debentures as of the Early Tax Redemption Date (the "Convertible Debenture Fair
Market Value"). The Initial MWA Experienced Appraisers shall be instructed (the
"MWA Instructions") to independently determine the Convertible Debenture Fair
Market Value as of the Early Tax Redemption Date assuming for this purpose that
the Convertible Debentures were to remain outstanding until September 30, 2003
(taking into account for this purpose the interest rate and the option embedded
in the Convertible Debentures). If the Initial MWA Experienced Appraisers shall
not agree on the Convertible Debenture Fair Market Value, then within 10 days
after the Appraisal Period, they shall jointly appoint a third Experienced
Appraiser to objectively determine the Convertible Debenture Fair Market Value
and, in connection therewith, provide to such firm information as to their
calculations of the Convertible Debenture Fair Market Value. The third
Experienced Appraiser shall be instructed to objectively determine the
Convertible Debenture Fair Market Value in accordance with the MWA Instructions
and to select the Convertible Debenture Fair Market Value determined by one of
the Initial MWA Experienced Appraisers that most closely approximates the
Convertible Debenture Fair Market Value determined by such third Experienced
Appraiser. Such appraisal and selection by such third Experienced Appraiser
shall be completed within 20 days after the date of appointment of such firm and
shall be final and binding on the Company and each Holder. The Convertible
Debenture Fair Market Value that most closely
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approximates the Convertible Debenture Fair Market Value determined by such
third Experienced Appraiser shall constitute the "Adjusted Redemption Price." If
the Adjusted Redemption Price is determined to be less than the Redemption
Price, the Company shall instead pay the Redemption Price to the Holders of the
Convertible Debentures. All costs and expenses incurred in connection with the
appraisals, including fees to investment banking firms, necessary to determine
the Convertible Debenture Fair Market Value and the Adjusted Redemption Price
shall be borne by the Company. The Company covenants and agrees that it shall
enter into engagement agreements with the foregoing Experienced Appraisers
containing customary terms and conditions, including customary indemnification
provisions.
Section 10.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 10.2(b) and to the provisions
of this Article X generally, except as otherwise may be specified in Section
10.1 or elsewhere in this Amended and Restated Indenture, the Company shall have
the right to redeem the Non-Convertible Debentures, in whole or in part, from
time to time, at any time after the date hereof and the Convertible Debentures,
in whole or in part, from time to time, on or after September 30, 2004. Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice to the Holders of the Non-Convertible Debentures or
Holders of the Convertible Debentures, as the case may be, at a price equal to,
in the case of the Non-Convertible Debentures, 100% of the principal amount of
the Non-Convertible Debentures and, in the case of the Convertible Debentures,
100% of the principal amount of the Convertible Debentures (each, an "Optional
Redemption Price"), together with, in each case, accrued and unpaid interest
(including Additional Sums, if any, and, to the extent permitted by applicable
law, Compounded Interest, if any) to, but excluding, the redemption date.
If Debentures are redeemed on any March 31, June 30, September 30, or
December 31, accrued and unpaid interest shall be payable to holders of record
on the relevant record date.
The Company may not redeem fewer than all of the outstanding
Non-Convertible Debentures or the Convertible Debentures unless all accrued and
unpaid interest has been paid on all such Non-Convertible Debentures or such
Convertible Debentures, as the case may be, for all quarterly interest payment
periods terminating on or prior to the date of redemption.
So long as the corresponding Convertible Amount of Trust Securities is
outstanding, the proceeds from the redemption of the Convertible Debentures will
be used to redeem Convertible Amount of Trust Securities and so long as the
corresponding Non-Convertible Amount of Trust Securities is outstanding, the
proceeds from the redemption of the Non-Convertible Debentures will be used to
redeem Non-Convertible Amount of Trust Securities.
If the Non-Convertible Debentures or the Convertible Debentures are
only partially redeemed pursuant to this Section 10.2, the Non-Convertible
Debentures or the Convertible Debentures, as the case may be, will be redeemed
pro rata. The applicable Optional Redemption Price, together with any required
interest payment, shall be paid in immediately available funds prior to 12:00
noon, New York time, on the redemption date or at such earlier time as the
Company determines provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Optional Redemption Price, together with any
required interest payment, by 10:00 a.m., New York time, on the date such
amounts are to be paid. Partial redemptions must be in an amount not less than
$1,000 principal amount of Non-Convertible Debentures or the Convertible
Debentures, as the case may be.
If Convertible Debentures selected for partial redemption are converted
in part before termination of the conversion right with respect to the portion
of the Convertible Debentures so selected, the converted portion of the
Convertible Debentures shall be deemed (so far as may be) to be the portion
selected for redemption. Convertible Debentures (or portions thereof) which have
been converted during a selection of Convertible Debentures to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection. In
any case where more than one Convertible Debenture is registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Convertible Debenture.
If any Convertible Debenture called for redemption is converted into
shares of Common Stock, any money deposited with the Trustee or with any Paying
Agent or so segregated and held in trust for the redemption of such Convertible
Debenture shall (subject to any right of the Holder of such Convertible
Debenture or any Predecessor Convertible Debenture to receive interest as
provided in the last paragraph of Section 2.9) be paid to the Company upon the
Company's request or, if then held by the Company, shall be discharged from such
trust.
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(b) If a partial redemption of the Non-Convertible Debentures or the
Convertible Debentures would result in the delisting of any of the Convertible
Preferred Securities issued by the Trust from any national securities exchange
or other organization on which such Convertible Preferred Securities are then
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Non-Convertible Debentures or the Convertible Debentures, as
the case may be, in whole.
Section 10.3. No Sinking Fund. The Debentures are not entitled to the
benefit of any sinking fund or subject to any sinking fund.
Section 10.4. Election to Redeem; Notice of Redemption; Partial
Redemptions. The election of the Company to redeem any Debentures shall be
evidenced by, or pursuant to, a resolution of the Board of Directors. Notice of
redemption to the Holders of Debentures required to be redeemed or to be
redeemed as a whole or in part at the option of the Company shall be given by
giving notice of such redemption as provided in Section 15.4, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Debentures. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Neither the failure to give notice by mail, nor any defect
in the notice so mailed to the Holder of any Debenture designated for redemption
as a whole or in part shall affect the validity of the proceedings for such
redemption.
The notice of redemption to each such Holder shall specify the date
fixed for redemption, the "CUSIP" number or numbers for such Debentures, the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Debentures, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue, if applicable, the conversion rate or price, any date on which
the right to convert any Convertible Debentures to be redeemed will terminate
and the place or places where such Debentures may be surrendered for conversion.
If less than all of the Debentures are to be redeemed, the notice of redemption
shall specify the number of the Debentures to be redeemed. In case any Debenture
is to be redeemed in part, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Debenture, a new Debenture
or Debentures in principal amount equal to the unredeemed portion thereof will
be issued.
The notice of redemption of Debentures to be redeemed at the option 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. If such notice is to be
given by the Trustee, the Company shall provide notice of such redemption to the
Trustee at least 60 days prior to the date fixed for redemption (unless a
shorter notice shall be satisfactory to the Trustee). If such notice is given by
the Company, the Company shall provide a copy of such notice given to the
Holders of such redemption to the Trustee at least 2 days prior to the date such
notice is given to such Holders, but in any event at least 30 days and not more
than 60 days prior to the date fixed for redemption.
Not later than the redemption date specified in the notice of
redemption given as provided in this Section, the Company will have on deposit
with the Trustee or with one or more Paying Agents (or, if the Company is acting
as its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 3.3) in funds available on such date an amount of money sufficient to
redeem on the redemption date all the Debentures so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption. If less than all of the Outstanding Non-Convertible Debentures
or Convertible Debentures are to be redeemed at the election of the Company, the
Company will deliver to the Trustee at least 60 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee) an
Officers' Certificate stating the aggregate principal amount of Non-Convertible
Debentures or Convertible Debentures, as the case may be, to be redeemed.
For all purposes of this Amended and Restated Indenture, unless the
context otherwise requires, all provisions relating to the redemption of
Debentures shall relate, in the case of any Debenture redeemed or to be redeemed
only in part, to the portion of the principal amount of such Debenture which has
been or is to be redeemed.
Section 10.5. Payment of Debentures Called for Redemption. If notice of
redemption has been given as above provided, the Debentures or portions of
Debentures specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the
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payment of such Debentures at the redemption price, together with interest
accrued to said date) interest on the Debentures or portions of Debentures so
called for redemption shall cease to accrue, and, except as provided in Section
6.1, such Debentures shall cease from and after the date fixed for redemption to
be entitled to any benefit or security under this Amended and Restated
Indenture, and the Holders thereof shall have no right in respect of such
Debentures except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Debentures at a Place of Payment specified in said notice, said Debentures or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that, payment of interest becoming due on or
prior to the date fixed for redemption shall be payable to the Holders of such
Debentures registered as such on the relevant record date subject to the terms
and provisions of Section 2.9 hereof.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the applicable
Non-Convertible Coupon Rate or Convertible Coupon Rate.
Upon presentation of any Debenture redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Debenture or Debentures of the same series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Debenture so presented.
Section 10.6. Exclusion of Certain Debentures from Eligibility for
Selection for Redemption. Debentures shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 30 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company (it
being understood that VRLP and any Affiliate of Vornado Realty Trust or VRLP and
EOPLP and any Affiliate of Equity Office Properties Trust or EOPLP shall not be
deemed to be under common control with the Company).
ARTICLE XI
EXTENSION OF INTEREST PAYMENT PERIOD
Section 11.1. Extension of Interest Payment Period. As long as an Event
of Default under Section 5.1(a) of this Amended and Restated Indenture shall not
have occurred and be continuing, subject to the condition that the Company file
with the Trustee and the transfer agent for the Convertible Preferred Securities
and the Debentures a Certificate signed by the chief financial officer or
Treasurer of the Company in the form attached hereto as Exhibit B ("Extension
Certificate"), the Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of all of the Debentures for a period not
exceeding 20 consecutive quarters (the "Extension Period"), during which
Extension Period no interest shall be due and payable; provided that an
Extension Certificate shall be filed at the beginning of each quarter of such
Extension Period and that no Extension Period may extend beyond the Maturity
Date or any earlier redemption date. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 11.1, will bear interest
thereon at the applicable Coupon Rate (the Non-Convertible Coupon Rate or the
Convertible Coupon Rate) compounded quarterly for each quarter of the Extension
Period ("Compound Interest"). Each Extension Period, if any, will end on an
Interest Payment Date. At the end of the Extension Period, the Company shall pay
all interest accrued and unpaid on the Debentures, including any Additional Sums
and, to the extent permitted by law, Compound Interest (together, "Deferred
Interest") that shall be payable to the Holders of the Debentures in whose names
the Debentures are registered in the Security Register at the close of business
on the record date next preceding such Interest Payment Date. Before the
termination of any Extension Period, the Company may further extend such period,
provided that such period together with all previous and further extensions
thereof shall not exceed 20 consecutive quarters, or extend beyond the Maturity
Date or any earlier redemption date. Upon the termination of any Extension
Period and upon the payment of all Deferred Interest then due, the Company may
commence a new Extension Period, subject to the foregoing requirements. No
interest shall be due and payable
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during an Extension Period, except at the end thereof, but the Company may
prepay at any time all or any portion of the interest accrued during an
Extension Period.
Section 11.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Regular Trustees, the Institutional Trustee and
the Trustee of its selection of such Extension Period at least one Business Day
before the next succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable. The Company shall cause the Trust to give
notice of the Company's selection of such Extension Period to holders of the
Convertible Preferred Securities.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures, the Institutional Trustee and the
Trustee written notice of its selection of such Extension Period at least 10
Business Days before next succeeding Interest Payment Date.
(c) The quarter in which any notice is given pursuant to paragraphs (a)
or (b) of this Section 11.2 shall be counted as one of the 20 consecutive
quarters permitted in the maximum Extension Period permitted under Section 11.1.
ARTICLE XII
CONVERSION OF CONVERTIBLE DEBENTURES
Section 12.1. Conversion Rights. Subject to and upon compliance with
the provisions of this Article XII, all of the principal amount (or any portion
of such principal amount that is an integral multiple of $1,000) of the
Convertible Debentures held by any Holder is convertible, at the option of the
Holders, at any time through the close of business on the last Business Day
prior to the Maturity Date (or, in the case of Convertible Debentures called for
redemption, prior to the close of business on the Business Day prior to the
corresponding redemption date) into fully paid and nonassessable shares of Class
A Common Stock at an initial conversion rate of 142.857 shares of Class A Common
Stock for each $1,000 in principal amount of Convertible Debentures (equivalent
to a conversion price of $7.00 per share (the "Conversion Price")), subject to
adjustment and reset as described in this Article XII. Subject to the preceding
sentence and the following sentence, a Holder of Convertible Debentures may
convert any portion of the principal amount of the Convertible Debentures into
that number of fully paid and nonassessable shares of Class A Common Stock
obtained by dividing the principal amount of the Convertible Debentures to be
converted by such Conversion Price. At least $1,000,000 of the principal amount,
or the entire principal amount, if less than $1,000,000, of the Convertible
Debentures held by the converting Holder must be converted in connection with
any conversion into shares of Class A Common Stock pursuant to the foregoing.
All calculations under this Article XII shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be.
Section 12.2. Conversion Procedures.
(a) In order to convert all or a portion of the Convertible Debentures,
the Holder thereof shall deliver to the Conversion Agent an irrevocable notice
of conversion (the "Notice of Conversion") setting forth the principal amount of
Convertible Debentures to be converted, together with the name or names, if
other than the Holder, in which the shares of Class A Common Stock should be
issued upon conversion and, surrender to the Conversion Agent the Convertible
Debentures to be converted, duly endorsed or assigned to the Company or in
blank. In addition, a holder of Convertible Preferred Securities may exercise
its right under the Declaration to convert such Convertible Preferred Securities
into shares of Class A Common Stock by delivering to the Conversion Agent an
irrevocable Notice of Conversion setting forth the information called for by the
preceding sentence and directing the Conversion Agent (i) to exchange the
Convertible Amount of such Convertible Preferred Securities for a portion of the
Convertible Debentures held by the Trust (at an exchange rate of $1,000
principal amount of Convertible Debentures for each $1,000 in liquidation amount
of the Convertible Amount of the Convertible Preferred Securities so exchanged)
and (ii) to immediately convert such Convertible Debentures, on behalf of such
holder, into shares of Class A Common Stock of the Company pursuant to this
Article XII and surrendering such Convertible Preferred Securities, duly
endorsed or assigned to the Company or in blank. So
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long as any Convertible Preferred Securities are outstanding, the Trust shall
not convert any Convertible Debentures except pursuant to a Notice of Conversion
delivered to the Conversion Agent by a holder of Convertible Preferred
Securities.
If a Notice of Conversion is delivered on or after the record date and
prior to the subsequent Interest Payment Date, the Holder will be entitled to
receive the interest payable on the subsequent Interest Payment Date on the
portion of Convertible Debentures to be converted notwithstanding the conversion
thereof prior to such Interest Payment Date. However, if a redemption date falls
between a record date and the subsequent Interest Payment Date, the Holder will
be entitled to receive, on such Interest Payment Date, the interest accrued to,
but excluding, the redemption date. Except as otherwise provided in the first
and second sentences of this paragraph, in the case of any Convertible Debenture
which is converted, interest whose Stated Maturity is after the date of
conversion of such Convertible Debenture shall not be payable, and the Company
shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest on the Convertible
Debentures being converted, which shall be deemed to be paid in full. Each
conversion shall be deemed to have been effected immediately prior to the close
of business on the day on which the Notice of Conversion was received (the
"Conversion Date") by the Conversion Agent from the Holder or from a holder of
the Convertible Preferred Securities effecting a conversion thereof pursuant to
its conversion rights under the Declaration, as the case may be. The Person or
Persons entitled to receive the shares of Class A Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Class A Common Stock as of the Conversion Date. As
promptly as practicable on or after the Conversion Date, the Company shall issue
and deliver at the office of the Conversion Agent, unless otherwise directed by
the Holder in the Notice of Conversion, a certificate or certificates for the
number of full shares of Class A Common Stock issuable upon such conversion,
together with the cash payment, if any, in lieu of any fraction of any share to
the Person or Persons entitled to receive the same. The Conversion Agent shall
deliver such certificate or certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed number of
shares of Class A Common Stock into which the Convertible Debentures are
convertible (together with the cash payment, if any, in lieu of fractional share
and the interest payable pursuant to Section 12.2(a)) shall be deemed to satisfy
the Company's obligation to pay the principal amount at Maturity of the portion
of Convertible Debentures so converted and any unpaid interest (including
Compound Interest) accrued on such Convertible Debentures at the time of such
conversion.
(c) No fractional shares of Class A Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the date on which the
Convertible Debentures were duly surrendered to the Conversion Agent for
conversion, or, if such day is not a Trading Day, on the next Trading Day, and
the Conversion Agent in turn will make such payment, if any, to the Holder of
the Convertible Debentures or the holder of the Convertible Preferred Securities
so converted.
(d) In the event of the conversion of any Convertible Debenture in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the expense
of the Company, a new Convertible Debenture or Convertible Debentures in the
aggregate principal amount equal to the unconverted portion thereof.
(e) In effecting the conversion transactions described in this Section
12.2, the Conversion Agent is acting as agent of the holders of Convertible
Preferred Securities (in the exchange of Convertible Preferred Securities for
Convertible Debentures) and as agent of the Holders of Convertible Debentures
(in the conversion of Convertible Debentures into shares of Class A Common
Stock), as the case may be. The Conversion Agent is hereby authorized (i) to
exchange Convertible Debentures held by the Trust from time to time for
Convertible Preferred Securities in connection with the conversion of such
Convertible Preferred Securities in accordance with this Article XII and (ii) to
convert all or a portion of the Convertible Debentures into shares of Class A
Common Stock and thereupon to deliver such shares of Class A Common Stock in
accordance with the provisions of this Article XII and to deliver to the Trust a
new Convertible Debenture or Convertible Debentures for any resulting
unconverted principal amount.
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Section 12.3. Conversion Price Adjustments. The Conversion Price shall
be adjusted from time to time as follows:
(a) In case the Company shall, while any of the Convertible Debentures
are outstanding, (i) pay a dividend or make a distribution with respect to
shares of Common Stock in shares of Common Stock, (ii) subdivide outstanding
shares of Common Stock, (iii) combine outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its shares of
Common Stock any shares of Capital Stock of the Company (other than the
reclassifications covered by Section 12.4), the conversion privilege and the
Conversion Price for the Convertible Debentures shall be adjusted so that the
Holder of any Convertible Debenture thereafter surrendered for conversion shall
be entitled to receive the number of shares of Capital Stock of the Company
which such Holder would have owned immediately following such action had such
Convertible Debenture been converted immediately prior thereto. An adjustment
made pursuant to this subsection (a) shall become effective immediately after
the record date in the case of a dividend or other distribution and shall become
effective immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date if a
record date shall have been established for such event).
(b) In case the Company shall, while any of the Convertible Debentures
are outstanding, issue rights or warrants to all holders of its shares of Common
Stock entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the current market price per share of Common Stock (as
determined pursuant to subsection (f) below) on the record date mentioned below,
the Conversion Price for the Convertible Debentures shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date of issuance of such rights or warrants by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the number
of shares which the aggregate offering price of the total number of shares so
offered for subscription or purchase would purchase at such current market
price, and of which the denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants plus the
number of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall become effective immediately after the record
date for the determination of stockholders entitled to receive such rights or
warrants. For the purposes of this subsection, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company. In case any rights or warrants referred to in this subsection in
respect of which an adjustment shall have been made shall expire unexercised
within 45 days after the same shall have been distributed or issued by the
Company, the Conversion Price shall be readjusted at the time of such expiration
to the Conversion Price that would have been in effect if no adjustment had been
made on account of the distribution or issuance of such expired rights or
warrants.
(c) Subject to the last sentence of this subsection (c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its shares
of Common Stock evidences of its indebtedness, shares of any class or series of
Capital Stock, cash or assets or rights or warrants to subscribe for or purchase
any of its securities (excluding any rights or warrants referred to in
subsection (b), any dividend or distribution paid exclusively in cash and any
dividend or distribution referred to in subsection (a) of this Section 12.3),
the Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this
subsection (c) by a fraction of which the numerator shall be the current market
price (determined as provided in subsection (f)) per share of Common Stock on
the date fixed for the payment of such distribution (the "Reference Date") less
the fair market value (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a resolution of the
Board of Directors), on the Reference Date, of the portion of the evidences of
indebtedness, shares of Capital Stock, cash, assets, rights or warrants so
distributed applicable to one share of Common Stock and the denominator shall be
such current market price per share of Common Stock, such reduction to become
effective immediately prior to the opening of business on the day following the
Reference Date. In the event that no such dividend or distribution is so paid or
made, the Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not occurred.
If the Board of Directors determines the fair market value of any distribution
for purposes of this subsection (c) by reference to the actual or when issued
trading market for any securities comprising such distribution, it must in doing
so consider the prices in such market over the same period used in computing the
current market price per share of Common Stock (determined as provided in
subsection (f)). For purposes of this subsection (c), any dividend or
distribution that includes shares of Common Stock, or rights or warrants of the
type described in subsection (b), shall be deemed instead to be a dividend or
distribution of the evidences of indebtedness, shares of Capital Stock, cash or
assets or rights or warrants other than such shares of
932388.8
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Common Stock, or such rights or warrants of the type described in subsection (b)
(making any Conversion Price reduction required by this subsection (c)),
immediately followed by a dividend or distribution of such shares of Common
Stock or such rights or warrants of the type described in subsection (b) (making
any further Conversion Price adjustment required by subsection (a) or (b)),
except (A) the Reference Date of such dividend or distribution as defined in
this subsection (c) shall be substituted as (1) "the record date in the case of
a dividend or other distribution," and (2) "the record date for the
determination of stockholders entitled to receive such rights or warrants" and
(3) "the date fixed for such determination" within the meaning of subsections
(a) and (b) and (B) any share of Common Stock included in such dividend or
distribution shall not be deemed outstanding for purposes of computing any
adjustment of the Conversion Price in subsection (b).
(d) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Company's shares of Common Stock shall expire and such tender or exchange
offer shall involve the payment by the Company or such subsidiary of
consideration per share of Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a resolution of the Board of Directors) on the last
date (the "Expiration Date") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds the
Closing Price of the shares of Common Stock on the Expiration Date, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this
subsection (d) by a fraction (which shall not be greater than one) of which the
numerator shall be (i) the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) on the Expiration Date times the
Closing Price of the shares of Common Stock on the Expiration Date minus (ii)
the fair market value (determined as aforesaid) of the aggregate consideration
paid pursuant to such tender or exchange offer and the denominator shall be (i)
the number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the Expiration Date minus the number of shares of Common
Stock purchased pursuant to such tender or exchange offer times (ii) the Closing
Price of the shares of Common Stock on the Expiration Date, such reduction to
become effective immediately prior to the opening of business on the day
following the Expiration Date.
(e) In case a tender or exchange offer made by a Person other than the
Company or any Subsidiary of the Company for all or any portion of the shares of
Common Stock shall expire and such tender or exchange offer shall involve the
payment by a Person other than the Company or any Subsidiary of the Company of
consideration per share having a fair market value (as determined in good faith
by the Board of Directors, whose determination shall be conclusive and evidenced
by a resolution of the Board of Directors) at the applicable Expiration Date
that exceeds the Closing Price of the shares of Common Stock on the Expiration
Date in which as of the closing date of the offer the Board of Directors of the
Company is not recommending rejection of the offer, the Conversion Price shall
be reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subsection (e) by a fraction
(which shall not be greater than one) of which the numerator shall be (i) the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the Expiration Date times the Closing Price of the shares
of Common Stock on the Expiration Date minus (ii) the fair market value
(determined as aforesaid) of the aggregate consideration paid pursuant to such
tender or exchange offer and the denominator shall be (i) the number of shares
of Common Stock outstanding (including any tendered or exchanged shares) on the
Expiration Date minus the number of shares of Common Stock purchased pursuant to
such tender or exchange offer times (ii) the Closing Price of the shares of
Common Stock on the Expiration Date, such reduction to become effective
immediately prior to the opening of business on the day following the Expiration
Time; provided, however, that the reduction of the Conversion Price contemplated
by this subsection (e) will only be made if the tender offer or exchange offer
is made for an amount which increases that Person's ownership of shares of
Common Stock to more than 25% of the total shares of Common Stock outstanding
and provided, further, that the reduction of the Conversion Price contemplated
by this subsection (e) will not be made if as of the close of the offer, the
offering documents with respect to such offer include a commitment to cause the
Company to engage in a consolidation or merger of the Company or a sale of all
or substantially all of the assets of the Company.
(f) For the purpose of any computation under subsection (b), (c), (d)
or (e), the current market price per share of Common Stock on any date in
question shall be deemed to be the average of the daily Closing Prices for the
five Trading Day period ending on the earlier of the day in question and, if
applicable, the last Trading Day before the "ex" date with respect to the
issuance or distribution requiring such computation; provided, however, that if
more than one event occurs that would require an adjustment pursuant to
subsections
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(a) through (e), inclusive, the Board of Directors shall in good faith make such
adjustments to the Closing Prices during such five Trading Day period as it
reasonably deems appropriate to effectuate the intent of the adjustments in this
Section 12.3, in which case any such determination by the Board of Directors
shall be set forth in a Board Resolution and shall be conclusive. For purposes
of this paragraph, the term "ex" date, (1) when used with respect to any
issuance or distribution, means the first date on which the shares of Common
Stock trade regular way on the New York Stock Exchange or on such successor
securities exchange as the shares of Common Stock may be listed or in the
relevant market from which the Closing Prices were obtained without the right to
receive such issuance or distribution, and (2) when used with respect to any
tender or exchange offer means the first date on which the shares of Common
Stock trade regular way on such securities exchange or in such market after the
Expiration Time of such offer.
(g) The Company may make such reductions in the Conversion Price, in
addition to those required by subsections (a) through (e), as the Board of
Directors considers to be advisable to avoid or diminish any income tax to
holders of shares of Common Stock or rights to purchase shares of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes. The Company
from time to time may reduce the Conversion Price by any amount for any period
of time if the period is at least twenty (20) days. Whenever the Conversion
Price is reduced pursuant to the preceding sentence, the Company shall mail to
Holders of record of the Convertible Debentures a notice of the reduction at
least 15 days prior to the date the reduced Conversion Price takes effect, and
such notice shall state the reduced Conversion Price and the period it will be
in effect.
(h) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided, however, that any adjustments which by reason of
this subsection (h) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
(i) If any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder of Convertible Debentures.
(j) Except as stated above, the Conversion Rate will not be adjusted
for the issuance of shares of Common Stock or any securities convertible into,
or exchangeable for, shares of Common Stock, or carrying the right to purchase
any of the foregoing.
Section 12.4. Merger, Consolidation or Sale of Assets.
(a) In the event that the Company shall be a party to any transaction
(including without limitation (i) any recapitalization or reclassification of
the shares of Common Stock (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination of the shares of Common Stock, (ii) any consolidation
of the Company with, or merger of the Company into, any other Person, any merger
of another Person into the Company (other than a merger which does not result in
a reclassification, conversion, exchange or cancellation of outstanding shares
of Common Stock), (iii) any sale or transfer of all or substantially all of the
assets of the Company, or (iv) any compulsory share exchange) pursuant to which
shares of Common Stock shall be converted into the right to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the Holder of each Convertible
Debenture then outstanding shall have the right thereafter to convert such
Convertible Debenture only into:
(i) in the case of any such transaction that does not
constitute a Common Stock Fundamental Change, the kind and amount of
the securities, cash or other property that would have been receivable
upon such transaction by a holder of the number of shares of Common
Stock issuable upon conversion of such Convertible Debenture
immediately prior to such transaction, after giving effect to any
adjustment in the Conversion Price in accordance with clause (i) of
subsection (c) of this Section 12.4; and
(ii) in the case of any such transaction that constitutes a
Common Stock Fundamental Change, common stock of the kind received by
holders of Common Stock as a result of such Common Stock Fundamental
Change in an amount determined in accordance with clause (ii) of
subsection (c) of this Section 12.4.
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(b) The Company or, if the Company is not the surviving Person in such
transaction, the surviving Person, shall amend this Amended and Restated
Indenture as appropriate to establish such right. Such amendment shall provide
for adjustments which, for events subsequent to the effective date thereof,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article XII. The above provisions shall similarly apply to
successive transactions of the foregoing type.
(c) Notwithstanding any other provision of this Section 12.4 to the
contrary, if any Fundamental Change occurs, then the Conversion Price in effect
will be adjusted immediately after such Fundamental Change as follows:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price of the Convertible Debentures immediately following
such Non-Stock Fundamental Change shall be the lower of (A) the
Conversion Price in effect immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant to Section 12.3, and (B) the product of
(1) the greater of the Applicable Price and the then applicable
Reference Market Price and (2) a fraction, the numerator of which is
$1,000 and the denominator of which is (x) the amount of the Optional
Redemption Price set forth in Section 10.2 for $1,000 in principal
amount of Convertible Debentures if the redemption date were the date
of such Non-Stock Fundamental Change plus (y) any then-accrued and
unpaid interest on $1,000 principal amount of Convertible Debentures
provided that if the Non-Stock Fundamental Change occurs prior to
September 30, 2004, the Optional Redemption Price for purposes of the
foregoing will be recalculated pursuant to the provisions of
subparagraph (iii) below to provide for a lower conversion price to
account for the loss of the option value imbedded in the Convertible
Debentures immediately before the Non-Stock Fundamental Change; and
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the Convertible Debentures immediately following
such Common Stock Fundamental Change shall be the Conversion Price in
effect immediately prior to such Common Stock Fundamental Change, but
after giving effect to any other prior adjustments effected pursuant to
Section 12.3, multiplied by a fraction, the numerator of which is the
Purchaser Share Price and the denominator of which is the Applicable
Price; provided, however, that in the event of a Common Stock
Fundamental Change in which (A) 100% of the value of the consideration
received by a holder of shares of Common Stock is common stock of the
successor, acquiror or other third party (and cash, if any, paid with
respect to any fractional interests in such common stock resulting from
such Common Stock Fundamental Change) and (B) all of the shares of
Common Stock shall have been exchanged for, converted into or acquired
for, common stock of the successor, acquiror or other third party (and
any cash with respect to fractional interests), the Conversion Price of
the Convertible Debentures immediately following such Common Stock
Fundamental Change shall be the Conversion Price in effect immediately
prior to such Common Stock Fundamental Change multiplied by a fraction,
the numerator of which is one (1) and the denominator of which is the
number of shares of common stock of the successor, acquiror or other
third party received by a holder of one share of Common Stock as a
result of such Common Stock Fundamental Change.
(iii) For purposes of Section 12.4(c)(i), the Optional
Redemption Price to be used for purposes of making the adjustment of
the Conversion Price set forth therein in the event a Non-Stock
Fundamental Change occurs prior to September 30, 2004 (the
"Recalculated Optional Redemption Price") shall be determined pursuant
to the terms of this Section 12.4(c)(iii), provided that if the
Recalculated Optional Redemption Price is determined to be less than
the Optional Redemption Price, the Optional Redemption Price shall
instead be used for purposes of making the adjustment of the Conversion
Price set forth in Section 12.4(c)(i). Within 10 days of such Non-Stock
Fundamental Change, the Company and the Majority Holders shall each
appoint an Experienced Appraiser (the two Experienced Appraisers
appointed by the Company and the Majority Holders are hereinafter
referred to collectively as the "Initial RORP Experienced Appraisers")
to objectively determine the Recalculated Optional Redemption Price.
The Initial RORP Experienced Appraisers shall be instructed to
independently recalculate the Optional Redemption Price so that such
price accounts for the lost option value embedded in the Convertible
Debenture as a result of the Non-Stock Fundamental Change (the "RORP
Instructions"), which recalculated price shall constitute the
Recalculated Optional Redemption Price. The Initial RORP Experienced
Appraisers shall complete their appraisals and provide notice of their
determination to each other within 30 days after the Non-Stock
Fundamental Change (the "RORP Appraisal Period"). If the Initial RORP
Experienced Appraisers shall not agree on the Recalculated Optional
Redemption Price, then within 10 days after the RORP Appraisal Period,
they shall jointly appoint a third Experienced
932388.8
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Appraiser to objectively determine the Recalculated Optional Redemption
Price and, in connection therewith, provide to such firm information as
to their calculations of the Recalculated Optional Redemption Price.
The third Experienced Appraiser shall be instructed to objectively
determine the Recalculated Optional Redemption Price in accordance with
the RORP Instructions and to select the Recalculated Optional
Redemption Price determined by one of the Initial RORP Experienced
Appraisers that most closely approximates the Recalculated Optional
Redemption Price determined by such third Experienced Appraiser (the
"Selected Recalculated Optional Redemption Price"). The appraisal of
such third Experienced Appraiser shall be completed within 20 days
after the date of appointment of such firm, whereupon it shall select
the Selected Recalculated Optional Redemption Price. The selection of
the Selected Recalculated Optional Redemption Price by the third
Experienced Appraiser shall be final and binding on the Company and
each Holder. All costs and expenses incurred in connection with the
appraisals, including fees of investment bankers, necessary to
determine the Recalculated Optional Redemption Price shall be borne by
the Company. The Company covenants and agrees that it shall enter into
engagement agreements with the foregoing Experienced Appraisers
containing customary terms and conditions, including customary
indemnification provisions.
Section 12.5. Notice of Adjustments of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the chief financial officer or the treasurer of
the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee and the transfer agent for
the Convertible Preferred Securities and the Convertible Debentures; and
(b) a notice stating the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price shall as soon as practicable be mailed by
the Company to all record holders of Convertible Preferred Securities and the
Convertible Debentures at their last addresses as they appear upon the transfer
books of the Company and the Trust.
Section 12.6. Prior Notice of Certain Events. In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable in Common
Stock or (B) a dividend payable in cash that would not require an adjustment
pursuant to Section 12.3(c), or (ii) authorize a tender or exchange offer that
would require an adjustment pursuant to Section 12.3(d);
(b) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of stock of
any class or series or of any other rights or warrants;
(c) of any reclassification of Common Stock (other than a subdivision
or combination of the outstanding Common Stock, or a change in par value, or
from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company shall be required, or of the sale or transfer
of all or substantially all of the assets of the Company or of any compulsory
share exchange whereby the shares of Common Stock are converted into other
securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then the Company shall (i) if any Convertible Amount of Convertible Preferred
Securities is outstanding, cause to be filed with the transfer agent for the
Convertible Preferred Securities, and shall cause to be mailed to the holders of
record of the Convertible Preferred Securities, at their last addresses as they
shall appear upon the stock transfer books of the Trust or (ii) shall cause to
be mailed to all Holders of Convertible Debentures at their last addresses as
they shall appear in the Security Register, at least 15 days prior to the
applicable record or effective date hereinafter specified, a notice stating (A)
the date on which a record (if any) is to be taken for the purpose of such
dividend, distribution, rights or warrants or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined or (B) the
date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that
932388.8
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holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice). If at any time the
Trustee shall not be the Conversion Agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
Section 12.7. Certain Additional Rights. In case the Company shall, by
dividend or otherwise, declare or make a distribution on the Common Stock
referred to in Section 12.3(c), the Holder of the Convertible Debentures, upon
the conversion thereof subsequent to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the Conversion Price adjustment in respect of such
distribution, shall also be entitled to receive for each share of Common Stock
into which the Convertible Debentures are converted, the portion of the rights,
warrants, evidences of indebtedness, shares of Capital Stock, cash and assets so
distributed applicable to one share of Common Stock; provided, however, that, at
the election of the Company (whose election shall be evidenced by a resolution
of the Board of Directors) with respect to all Holders so converting, the
Company may, in lieu of distributing to such Holder any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holder an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and evidenced by a resolution of the Board of Directors). If any conversion of
Convertible Debentures described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Common Stock which
the Holder of Convertible Debentures so converted is entitled to receive in
accordance with the immediately preceding sentence, the Company may elect (such
election to be evidenced by a resolution of the Board of Directors) to
distribute to such Holder a due bill for the shares of Common Stock, rights,
warrants, evidences of indebtedness, shares of Capital Stock, cash or assets to
which such Holder is so entitled, provided, that such due bill (a) meets any
applicable requirements of the principal national securities exchange or other
market on which the shares of Common Stock are then traded and (b) requires
payment or delivery of such shares of Common Stock, rights, warrants, evidences
of indebtedness, shares of Capital Stock, cash or assets no later than the date
of payment or delivery thereof to holders of Common Stock receiving such
distribution.
Section 12.8. Trustee Not Responsible for Determining Conversion Price
or Adjustments. Neither the Trustee nor any Conversion Agent shall at any time
be under any duty or responsibility to any Holder of any Convertible Debenture
to determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed. Neither the Trustee nor any
Conversion Agent shall be accountable with respect to the validity or value (or
the kind or amount) of any Common Stock or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Convertible
Debenture; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property upon the surrender of any
Convertible Debenture for the purpose of conversion. All Convertible Debentures
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the discretion of the Trustee, which shall dispose of the same as provided in
Section 2.12 of this Amended and Restated Indenture.
Section 12.9. Reservation of Shares of Common Stock. The Company shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock or treasury shares, for the purpose of
effecting the conversion of Convertible Debentures, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Convertible
Debentures.
Section 12.10. Payment of Certain Taxes upon Conversion. The Company
will pay any and all taxes that may be payable in respect of the issue or
delivery of its shares of Common Stock on conversion of Convertible Debentures
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of its Common Stock in a name other than that of the Holder of the
Convertible Debenture or Convertible Debentures to be converted, and no such
issue or delivery shall be made unless and until the person requesting such
issue has paid to the Company the amount of any such tax, or has established, to
the satisfaction of the Company, that such tax has been paid.
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Section 12.11. Nonassessability. The Company covenants that all shares
of Common Stock which may be issued upon conversion of Convertible Debentures
will upon issue in accordance with the terms hereof be duly and validly issued
and fully paid and nonassessable.
ARTICLE XIII
SUBORDINATION OF DEBENTURES
Section 13.1. Debentures Subordinate to Senior Indebtedness. The
Company covenants and agrees, and each Holder of a Debenture, by the Holder's
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Debentures and the payment of the principal of (and premium, if any) and
interest on each and all of the Debentures are hereby expressly made subordinate
and junior in right of payment to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding at the date of this Amended and
Restated Indenture or thereafter incurred. No provision of this Article shall
prevent the occurrence of any default or Event of Default hereunder.
Section 13.2. Payment Over of Proceeds upon Dissolution, Etc. In the
event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Company voluntarily or
involuntarily, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors or (iv) any
other marshalling of assets of the Company, all amounts due upon all Senior
Indebtedness of the Company (including any interest thereon accruing after the
commencement of such proceedings) shall first be paid in full, or payment
thereof provided for in money in accordance with its terms, before any payment
is made by the Company on account of the principal (and premium, if any) or
interest on any of the Debentures; and any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Debentures or the Trustee
would be entitled to receive from the Company, except for the provisions of this
Article, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or distribution,
or by the Holders of the Debentures or by the Trustee under this Amended and
Restated Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated by
the Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness (including any
interest thereon accruing after the commencement of such proceedings) in full,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Holders of the Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment, such payment or distribution shall be held
in trust for the benefit of and shall be paid over or delivered to the holders
of such Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company, as the case may be, remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of Capital Stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to substantially the same extent as, or to a greater extent
than, the Debentures are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article IX of this Amended and
Restated Indenture shall not be deemed a dissolution, winding up, liquidation,
reorganization, readjustment, composition, assignment for the benefit of
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creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article IX of this Amended and Restated
Indenture.
Section 13.3. Prior Payment to Senior Indebtedness upon Acceleration of
Debentures. In the event that any Debentures are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all Senior Indebtedness or provision shall be made for such
payment in cash, before the Holders of the Debentures are entitled to receive
any payment (including any payment which may be payable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment of
the Debentures) by the Company on account of the principal of (or premium, if
any) or interest on the Debentures or on account of the purchase or other
acquisition of Debentures.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debenture prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.2 would be applicable.
Section 13.4. No Payment When Senior Indebtedness in Default. In the
event and during the continuation of any default by the Company in the payment
of principal, premium, if any, interest or any other payment due on any Senior
Indebtedness of the Company, as the case may be, beyond any applicable grace
period with respect thereto, or in the event that the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default, then, in
any such case, no payment shall be made by the Company with respect to the
principal (including redemption payments, if any) of, premium, if any, or
interest on the Debentures until such default is cured or waived or ceases to
exist or any such acceleration or demand for payment has been rescinded.
Section 13.5. Payment Permitted in Certain Situations. Nothing
contained in this Article or elsewhere in this Amended and Restated Indenture or
in the Debentures shall prevent (a) the Company, at any time except during the
pendency of any dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or any bankruptcy, insolvency,
receivership or other proceedings of the Company referred to in Section 13.2 or
under the conditions described in Section 13.3 or 13.4, from making payments at
any time of principal of or premium, if any, or interest on the Debentures, or
(b) the application by the Trustee of any money deposited with it hereunder to
the payment of or on account of the principal of, or premium, if any, or
interest on the Debentures or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, it did not have knowledge that
such payment would have been prohibited by the provisions of this Article.
Section 13.6. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, the Holders of Debentures shall be
subrogated to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article (equally and
ratably with the holders of indebtedness of the Company which by its express
terms is subordinated to indebtedness of the Company to substantially the same
extent as the Debentures are subordinated to the Senior Indebtedness and is
entitled to like rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Debentures shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
Debentures or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to or
for the benefit of the holders of Senior Indebtedness by Holders of Debentures
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of Debentures, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
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Section 13.7. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of Debentures on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Amended and Restated Indenture or in the Debentures
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of Debentures, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Indebtedness,
is intended to rank equally with all other general obligations of the Company),
to pay to the Holders of Debentures the principal of (and premium, if any) and
interest on the Debentures as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of Debentures and creditors of the Company, as the case
may be, other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Debenture from exercising all remedies otherwise
permitted by applicable law upon default under this Amended and Restated
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
Section 13.8. Trustee to Effectuate Subordination. Each Holder of a
Debenture 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 effectuate the subordination provided in this Article and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
Section 13.9. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness 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 Amended and Restated Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of Debentures and
without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of Debentures to the holders of Senior
Indebtedness do any one or more of the following (a) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
Section 13.10. Notice to Trustee. The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect
of the Debentures pursuant to the provisions of this Article. Notwithstanding
the provisions of this Article or any other provision of this Amended and
Restated Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee in respect of the Debentures pursuant to the provisions of this
Article, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 6.2
of this Amended and Restated Indenture, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
have not received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Debentures, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
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.
Subject to the provisions of Section 6.2 of this Amended and Restated
Indenture, the Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required with
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respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness 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, 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 13.11. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.2 of this
Amended and Restated Indenture, and the Holders of Debentures shall be entitled
to conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or 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 Debentures, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
Section 13.12. Trustee Not Fiduciary for Holders of Senior
Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Amended and Restated Indenture against the Trustee. Except with
respect to Section 13.4, the Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to any such
holders or creditors if it shall in good faith pay over or distribute to Holders
of Debentures or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
Section 13.13. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness and nothing in this Amended and Restated
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7 of this Amended and Restated
Indenture.
Section 13.14. Article Applicable to Paying Agents. In case 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 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 in addition to
or in place of the Trustee; provided, however, that Section 13.13 shall not
apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.
Section 13.15. Certain Conversions Deemed Payment. For purposes of this
Article only, (a) the issuance and delivery of junior securities (or cash paid
in lieu of fractional shares) upon conversion of Convertible Debentures in
accordance with Article XII shall not be deemed to constitute a payment or
distribution on account of the principal of or premium or interest on
Convertible Debentures or on account of the purchase or other acquisition of
Convertible Debentures, and (b) the payment, issuance or delivery of cash,
property or securities (other than junior securities and cash paid in lieu of
fractional shares) upon conversion of a Convertible Debenture shall be deemed to
constitute payment on account of the principal of such Convertible Debenture.
For the purposes of this Section, the term "junior securities" means (i) shares
of any Capital Stock of any class of the Company and (ii) securities of the
Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, the
Convertible Debentures are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Amended and Restated Indenture or
in the Convertible Debentures is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of Convertible Debentures, the right, which is absolute and unconditional, of
the Holder of any Convertible Debenture to convert such Convertible Debenture in
accordance with Article XII.
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ARTICLE XIV
EXPENSES
Section 14.1. Payment of Expenses. In connection with the offering,
sale and issuance of the Debentures to the Institutional Trustee and in
connection with the sale of the Trust Securities by the Trust, the Company, in
its capacity as borrower with respect to the Debentures, shall:
(a) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the fees and
expenses of the Institutional Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of Trust
assets);
(b) pay all costs and expenses related to the enforcement by the
Institutional Trustee of the rights of the holders of the Trust Securities;
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
Section 14.2. Payment Upon Resignation or Removal. Upon termination of
this Amended and Restated Indenture or the removal or resignation of the Trustee
pursuant to Section 6.8 of this Amended and Restated Indenture, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the case
may be, pursuant to Section 5.6 of the Declaration, the Company shall pay to the
Delaware Trustee or the Institutional Trustee, and their respective counsel, as
the case may be, all amounts accrued to the date of such termination, removal or
resignation.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Incorporators, Stockholders, Officers and Trustees of
Company Exempt from Individual Liability. No recourse under or upon any
obligations, covenant or agreement contained in this Amended and Restated
Indenture, in any Debenture, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or
future stockholder, officer or director, trustee, as such, of the Company or of
any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Debentures by the Holders thereof and as part of the consideration of the issue
of the Debentures.
Section 15.2. Provisions of Indenture for the Sole Benefit of Parties
and Holders of Debentures. Nothing in this Amended and Restated Indenture or in
the Debentures, expressed or implied, shall give or be construed to give to any
Person, firm or corporation, other than the parties hereto, any Paying Agent and
their successors hereunder, the holders of Senior Indebtedness, the holders of
Preferred Securities (to the extent provided herein) and the Holders of the
Convertible Debentures any legal or equitable right, remedy or claim under this
Amended and Restated Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Debentures.
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Section 15.3. Right to Assign; Successors and Assigns Bound by
Indenture. The Company shall have the right at all times to assign any of its
respective rights or obligations under this Amended and Restated Indenture to a
direct or indirect wholly-owned Subsidiary of the Company, other than an entity
which will be taxed as a partnership for federal income tax purposes; provided
that, in the event of any such assignment, the Company shall remain liable for
all of its obligations under this Amended and Restated Indenture. Subject to the
foregoing, this Amended and Restated Indenture will be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
The rights and obligations of the parties under this Amended and Restated
Indenture may not otherwise be assigned by such parties.
All the covenants, stipulations, promises and agreements in this
Amended and Restated Indenture by the parties hereto shall bind their respective
successors and assigns, whether so expressed or not.
Section 15.4. Notices and Demands on Company, Trustee and Holders of
Debentures. Any notice or demand which by any provision of this Amended and
Restated Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Debentures to or on the Company may be given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Company is
filed by the Company with the Trustee) to Capital Trust, Inc., 605 Third Avenue,
26th Floor, New York, New York, 10016, Attention: Chief Financial Officer. Any
notice, direction, request or demand by the Company or any Holder of Debentures
to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at the Corporate Trust Office.
Where this Amended and Restated Indenture provides for notice to
Holders of Debentures of any event such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed by
first-class mail, postage prepaid to such Holders as their names and addresses
appear in the Debenture register within the time prescribed. Where this Amended
and Restated 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. 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,
shall affect the sufficiency of such notice, and any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Holders of Debentures when such notice is required to be given pursuant to any
provision of this Amended and Restated Indenture, then any manner of giving such
notice as shall be reasonably acceptable to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 15.5. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take action under any of the provisions of this
Amended and Restated Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Amended and Restated 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, if any, have been complied with, except
that in the case of any such application or demand as to which the furnishing of
such documents is specifically required by any provision of this Amended and
Restated Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Amended and Restated
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Amended and Restated Indenture shall
include (a) a statement that the person making such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto, (b)
a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of any officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or
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opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters or information with respect to which is in the possession of the
Company, upon the certificate, statement or opinion of or representations by an
officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 15.6. Payments Due on Saturdays, Sundays and Holidays. Except
as otherwise provided in Section 2.5, if the date of Maturity of interest on or
principal of the Debentures or the date fixed for redemption or repayment of any
such Debenture shall not be a Business Day, then payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day; provided that if such next succeeding 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 date of Maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
Section 15.7. Conflict of Any Provision of Indenture with Trust
Indenture Act. If and to the extent that any provision of this Amended and
Restated Indenture limits, qualifies or conflicts with another provision
included in this Amended and Restated Indenture which is required by the Trust
Indenture Act, such required provision shall control.
Section 15.8. New York Law to Govern. THIS AMENDED AND RESTATED
INDENTURE AND ALL OF THE DEBENTURES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO
BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
Section 15.9. Counterparts. This Amended and Restated Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
Section 15.10. Effect of Headings; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof. The use of the masculine, feminine or neuter
gender herein shall not limit in any way the applicability of any term or
provision hereof.
Section 15.11. Accrued Distributions. The Company agrees to pay on June
30, 2000 to the Holder of Debentures the interest accrued on the Original
Convertible Debentures from April 1, 2000 to but not including the date hereof,
and upon receipt thereof, the Holder of Debentures agrees to pay on June 30,
2000 to each Holder of Trust Securities the distributions accrued on such Holder
of Trust Securities' Original Convertible Preferred Securities or Original
Common Securities from April 1, 2000 to but not including the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Indenture to be duly executed, and their respective corporate seals to
be hereto affixed and attested, all as of the day and year first above written.
CAPITAL TRUST, INC.
By: /s/ John R. Klopp
Name: John R. Klopp
Title: Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Roseline K. Maney
Name: Roseline K. Maney
Title: Senior Financial Services Officer
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SCHEDULE 2.5(a)
The following table lists the rate described in clause (i) of Section
2.5(a) for the Convertible Debentures for the periods specified.
Period Rate of Interest
------ ----------------
Issuance Date through March 31, 2002 8.25%
April 1, 2002 through September 30, 2004 10.00%
October 1, 2004 through September 30, 2005 10.75%
October 1, 2005 through September 30, 2006 11.50%
October 1, 2006 through September 30, 2007 12.25%
October 1, 2007 through September 30, 2008 13.00%
October 1, 2008 through September 30, 2009 13.75%
October 1, 2009 through September 30, 2010 14.50%
October 1, 2010 through September 30, 2011 15.25%
October 1, 2011 through September 30, 2012 16.00%
October 1, 2012 through September 30, 2013 16.75%
October 1, 2013 through September 30, 2014 17.50%
October 1, 2014 through September 30, 2015 18.25%
October 1, 2015 through September 30, 2016 19.00%
October 1, 2016 through September 30, 2017 19.75%
October 1, 2017 through Maturity Date 20.50%
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SCHEDULE 2.5(b)
The following table lists the rate described in Section 2.5(b) for the
Non-Convertible Debentures for the periods specified.
Period Rate of Interest
------ ----------------
Issuance Date through September 30, 2004 13.00%
October 1, 2004 through September 30, 2005 13.75%
October 1, 2005 through September 30, 2006 14.50%
October 1, 2006 through September 30, 2007 15.25%
October 1, 2007 through September 30, 2008 16.00%
October 1, 2008 through September 30, 2009 16.75%
October 1, 2009 through September 30, 2010 17.50%
October 1, 2010 through September 30, 2011 18.25%
October 1, 2011 through September 30, 2012 19.00%
October 1, 2012 through September 30, 2013 19.75%
October 1, 2013 through September 30, 2014 20.50%
October 1, 2014 through September 30, 2015 21.25%
October 1, 2015 through September 30, 2016 22.00%
October 1, 2016 through September 30, 2017 22.75%
October 1, 2017 through Maturity Date 23.50%
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EXHIBIT A
[(FORM OF FACE OF CONVERTIBLE DEBENTURE)]
No. __________ CUSIP NO. __________
CAPITAL TRUST, INC.
8.25% STEP UP CONVERTIBLE JUNIOR SUBORDINATED DEBENTURE
PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE, ANY CERTIFICATE EVIDENCING A
CONVERTIBLE DEBENTURE SHALL BEAR A LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM,
UNLESS OTHERWISE AGREED BY THE COMPANY (WITH WRITTEN NOTICE THEREOF TO THE
TRUSTEE): THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR, IF THIS SECURITY IS
CONVERTIBLE INTO CLASS A COMMON STOCK, THE CLASS A COMMON STOCK ISSUABLE UPON
CONVERSION OR EXCHANGE OF THIS SECURITY EXCEPT (A) TO CAPITAL TRUST, INC., (THE
"COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR
THE CONVERTIBLE PREFERRED SECURITIES OR THE CONVERTIBLE DEBENTURES, AS THE CASE
MAY BE (OR, IF THIS CERTIFICATE EVIDENCES CLASS A COMMON STOCK, THE TRANSFER
AGENT FOR THE CLASS A COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR TRANSFER AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE CONVERTIBLE DEBENTURES,
AS THE CASE MAY BE (OR, IF THIS CERTIFICATE EVIDENCES CLASS A COMMON STOCK, SUCH
HOLDER MUST FURNISH TO THE TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS THE COMPANY OR CT CONVERTIBLE TRUST I (THE "TRUST") MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT). IF THIS CERTIFICATE DOES NOT EVIDENCE CLASS
A COMMON STOCK AND IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE
CONVERTIBLE DEBENTURES, AS THE CASE MAY BE, SUCH CERTIFICATIONS, LEGAL OPINIONS
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OR OTHER INFORMATION AS THE COMPANY OR THE TRUST MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH IN THE AMENDED AND RESTATED INDENTURE
REFERRED TO HEREIN.
NO LATER THAN 10 DAYS AFTER THE ISSUE DATE OF THE CONVERTIBLE DEBENTURES,
INFORMATION CONCERNING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT,
THE ISSUE DATE, AND THE YIELD TO MATURITY OF THE CONVERTIBLE DEBENTURES MAY BE
OBTAINED FROM THE CHIEF FINANCIAL OFFICER OF CAPITAL TRUST, INC. AT 605 THIRD
AVENUE, 26TH FLOOR, NEW YORK, NY 10016.
Capital Trust, Inc., a Maryland corporation and successor to Capital Trust,
a California business trust (the "Company", which term includes any successor
corporation under the Amended and Restated Indenture hereinafter referred to on
the reverse hereof), for value received, hereby promises to pay to, Wilmington
Trust Company, as Institutional Trustee (the "Institutional Trustee") for CT
Convertible Trust I or registered assigns, the principal sum of Ninety-Two
Million Five Hundred Twenty-Four Thousand Dollars ($92,524,000) on September 30,
2018 and to pay interest on said principal sum from May 10, 2000 (the "Issuance
Date"), or from the most recent interest payment date to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on March 31, June 30, September 30, and December 31 (each such date,
an "Interest Payment Date") of each year commencing June 30, 2000, at the rate
of 8.25% per annum from and including the Issuance Date to and including March
31, 2002, immediately after which date such rate of interest per annum will
automatically increase to the greater of the following: (i) 10.00% per annum,
such rate of interest per annum automatically increasing by an additional .75%
per annum (any such increase shall be cumulative with any such prior
increase(s)) on October 1, 2004 and again on each subsequent October 1, and (ii)
the Common Rate, until the principal hereof shall have become due and payable,
and on any overdue principal and premium, and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of interest payable for any period
shorter than a full quarterly period for which interest is computed, will be
computed on the basis of the actual number of days elapsed per 30-day month. In
the event that any date on which interest is payable on this Convertible
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Amended and Restated Indenture (referred to on the reverse
hereof) be paid to the person in whose name this Convertible Debenture (or one
or more Predecessor Convertible Debentures, as defined in said Amended and
Restated Indenture) is registered on the record date for such interest
installment, which shall be the close of business on the fifteenth day prior to
such Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such record date and may be paid to the Person in whose name this Convertible
Debenture (or one or more Predecessor Convertible Debentures) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of the Convertible Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Convertible Debentures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Amended and Restated Indenture.
The principal of (and premium, if any) and the interest on this Convertible
Debenture shall be payable at the office or agency of the Trustee maintained for
that purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered Holder at such address as shall appear
in the Security Register. Notwithstanding the foregoing, so long as the Holder
of this Convertible Debenture is the Institutional Trustee, the payment of the
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principal of (and premium, if any) and interest on this Convertible Debenture
will be made at such place and to such account as may be designated by the
Institutional Trustee.
The indebtedness evidenced by this Convertible Debenture is, to the extent
provided in the Amended and Restated Indenture, subordinate and junior in right
of payment to the prior payment in full of all Senior Indebtedness, and this
Convertible Debenture is issued subject to the provisions of the Amended and
Restated Indenture with respect thereto. Each Holder of this Convertible
Debenture, 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 action as may be necessary or appropriate to acknowledge or 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, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Amended and Restated
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Convertible Debenture shall not be entitled to any benefit under the
Amended and Restated Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of Authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Convertible Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
Capitalized terms used but not defined herein shall have the meaning given
them in the Amended and Restated Indenture.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
CAPITAL TRUST, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
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[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Debentures described in the within-mentioned
Amended and Restated Indenture.
Dated: May 10, 2000
WILMINGTON TRUST COMPANY,
as Trustee
By:
Authorized Signatory
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[FORM OF REVERSE OF CONVERTIBLE DEBENTURE]
This Convertible Debenture is one of the 8.25% Step Up Convertible Junior
Subordinated Debentures (herein referred to as the "Convertible Debentures" or
"Debentures"), all issued or to be issued under and pursuant to an Amended and
Restated Indenture dated as of May 10, 2000 duly executed and delivered between
the Company and Wilmington Trust Company, as Trustee (the "Trustee") (the
"Amended and Restated Indenture"), to which Amended and Restated Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Convertible
Debentures. The Convertible Debentures are limited in aggregate principal amount
as specified in the Amended and Restated Indenture.
Because of the occurrence and continuation of a Tax Event, in certain
circumstances, this Convertible Debenture may become due and payable at the
principal amount specified on the face hereof together with any interest accrued
thereon (the "Redemption Price"). If a redemption in connection with a Tax Event
occurs on or before September 30, 2003, the Company shall pay to the Holders of
the Convertible Debentures an Adjusted Redemption Price specified in the Amended
and Restated Indenture. The Redemption Price or Adjusted Redemption Price, as
the case may be, shall be paid prior to 12:00 noon, New York City time, on the
date of such redemption or at such earlier time as the Company determines. The
Company shall have the right to redeem this Convertible Debenture at the option
of the Company, upon not less than 30 nor more than 60 days notice, without
premium or penalty, in whole or in part at any time on or after September 30,
2004 (an "Optional Redemption") at a price equal to 100% of the principal amount
of the Convertible Debentures (the "Optional Redemption Price") together with
accrued and unpaid interest (including Additional Sums, if any, and, to the
extent permitted by applicable law, Compound Interest, if any) to, but
excluding, the redemption date.
If Convertible Debentures are redeemed on any March 31, June 30, September
30, or December 31, accrued and unpaid interest shall be payable to holders of
record on the relevant record date.
So long as the corresponding Convertible Amount of Trust Securities is
outstanding, the proceeds from the redemption of any of the Convertible
Debentures will be used to redeem such Convertible Amount of Trust Securities.
If the Convertible Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Convertible Debentures will be redeemed
pro rata.
In the event of redemption of this Convertible Debenture in part only, a
new Convertible Debenture or Convertible Debentures for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
In case an Event of Default, as defined in the Amended and Restated
Indenture, shall have occurred and be continuing, the principal of all of the
Convertible Debentures and the interest accrued thereon may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Amended and Restated
Indenture.
The Amended and Restated Indenture contains provisions permitting the
Company and the Trustee, with the consent of the Holders of a majority of the
aggregate principal amount of the Debentures of a series at the time
Outstanding, evidenced as provided in the Amended and Restated Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Amended and Restated
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Debentures of such series; provided, however, that no such
supplemental indenture shall (i) extend the Stated Maturity of any Debenture, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
upon redemption thereof, or impair or affect the right of any Holder to
institute suit for the payment thereof, without the consent of the Holder of
each Debenture so affected, or (ii) reduce the aforesaid percentage of
Debentures of such series, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holder of each Debenture
of such series. It is also provided in the Amended and Restated Indenture that,
with respect to certain defaults or Events of Default regarding the Debentures,
prior to any declaration accelerating the maturity of such Debentures, the
Holders of a majority in aggregate principal amount Outstanding of such
Debentures (or, in the case of certain defaults or Events of Default, all of the
Debentures), may on behalf of the Holders of all the Debentures of such series
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Debentures. Any such
consent or waiver
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by the Holder of this Debenture (unless revoked as provided in the Amended and
Restated Indenture) shall be conclusive and binding upon such Holder and upon
all future Holders and owners of this Convertible Debenture and any Convertible
Debenture which may be issued in exchange or substitution therefor, irrespective
of whether or not any notation thereof is made upon this Convertible Debenture
or such other Convertible Debenture.
No reference herein to the Amended and Restated Indenture and no provision
of this Convertible Debenture or of the Amended and Restated Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and premium, if any, and interest on this
Convertible Debenture at the time and place and at the rate and in the money
herein prescribed and to convert this Convertible Debenture into shares of Class
A Common Stock upon an appropriate election by the holder hereof to convert this
Convertible Debenture into such shares.
As long as an Event of Default under Section 5.1(a) of the Amended and
Restated Indenture shall not have occurred and be continuing, the Company shall
have the right at any time during the term of the Convertible Debentures and
from time to time to extend the interest payment period of such Convertible
Debentures for up to 20 consecutive quarters (an "Extension Period"), at the end
of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Convertible
Debentures to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extension Period, the
Company may further extend such Extension Period, provided that such Extension
Period together with all such further extensions thereof shall not exceed 20
consecutive quarters. At the termination of any such Extension Period and upon
the payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extension Period.
As provided in the Amended and Restated Indenture and subject to certain
limitations therein set forth, this Convertible Debenture is transferable by the
registered Holder hereof on the Security Register of the Company, upon surrender
of this Convertible Debenture for registration of transfer at the office or
agency of the Trustee in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Convertible Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Convertible
Debenture, the Company, the Trustee, any paying agent and the Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Convertible Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Convertible Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Amended and
Restated Indenture, against any incorporator, stockholder, officer or director,
trustee, past, present or future, as such, of the Company or of any predecessor
or successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Holder of any Convertible Debenture has the right, exercisable at any
time through the close of business (New York time) on the last Business Day
prior to the Maturity Date (or, in the case of a Convertible Debenture called
for redemption, prior to the close of business on the Business Day prior to the
corresponding redemption date), to convert the principal amount thereof (or any
portion thereof that is an integral multiple of $1,000) into shares of Class A
Common Stock at the initial conversion rate of 142.857 shares of Common Stock
for each Convertible Debenture (equivalent to a Conversion Price of $7.00 per
share of Class A Common Stock), subject to adjustment under certain
circumstances. At least $1,000,000 of the principal amount, or the entire
principal amount, if less than $1,000,000, of the Convertible Debentures held by
the converting Holder must be converted in connection with any conversion into
shares of Class A Common Stock pursuant to the foregoing.
To convert a Convertible Debenture, a Holder must (a) complete and sign a
conversion notice substantially in the form attached hereto, (b) surrender the
Convertible Debenture to a Conversion Agent, (c) furnish appropriate
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endorsements or transfer documents if required by the Conversion Agent and (d)
pay any transfer or similar tax, if required. Upon conversion, no adjustment or
payment will be made for interest or dividends, but if any Holder surrenders a
Convertible Debenture for conversion on or after the record date for the payment
of an installment of interest and prior to the opening of business on the next
Interest Payment Date, then, notwithstanding such conversion, the interest
payable on such Interest Payment Date will be paid to the registered Holder of
such Convertible Debenture on such record date. In such event, such Convertible
Debenture, when surrendered for conversion, need not be accompanied by payment
of an amount equal to the interest payable on such Interest Payment Date on the
portion so converted. However, if a redemption date falls between a record date
and the subsequent Interest Payment Date, the Holder will be entitled to
receive, on such redemption date, the interest accrued to, but excluding, the
redemption date. The number of shares issuable upon conversion of a Convertible
Debenture is determined by dividing the principal amount of the Convertible
Debenture converted by the Conversion Price in effect on the Conversion Date. No
fractional shares will be issued upon conversion but a cash adjustment will be
made for any fractional interest. The outstanding principal amount of any
Convertible Debenture shall be reduced by the portion of the principal amount
thereof converted into Class A Common Stock.
The Convertible Debentures are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Amended and Restated Indenture and subject to certain
limitations therein set forth, Convertible Debentures are exchangeable for a
like aggregate principal amount of Convertible Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
THE AMENDED AND RESTATED INDENTURE AND THE CONVERTIBLE DEBENTURES SHALL BE
DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID
STATE.
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[FORM OF ELECTION TO CONVERT]
ELECTION TO CONVERT
To: Capital Trust, Inc.
The undersigned owner of this Convertible Debenture hereby irrevocably
exercises the option to convert this Convertible Debenture, or the portion below
designated, into shares of Class A Common Stock of CAPITAL TRUST, INC. in
accordance with the terms of the Amended and Restated Indenture referred to in
this Convertible Debenture, and directs that the shares issuable and deliverable
upon conversion, together with any check in payment for fractional shares, be
issued in the name of and delivered to the undersigned, unless a different name
has been indicated in the assignment below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Date: _______________, ____
in whole _____ Portions of Convertible Debenture to be converted
($1,000 or integral multiples-thereof):$____________
---------------------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including
Zip Code, and Social Security or Other Identifying
Number
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
Signature Guarantee:* _______________________________
- --------
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Conversion Agent in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
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ASSIGNMENT
[FORM OF ASSIGNMENT FOR CONVERTIBLE DEBENTURES]
For value received _________________________________ hereby sell(s), assign(s)
and transfer(s) unto (Please insert social security or other taxpayer
identification number of assignee) the within Convertible Debenture and hereby
irrevocably constitutes and appoints _______ attorney to transfer the said
Convertible Debenture on the books of the Company, with full power of
substitution in the premises.
In connection with any transfer of the within Convertible Debenture occurring
prior to the Transfer Restriction Termination Date, the undersigned confirms
that such Convertible Debenture is being transferred:
|_| To Capital Trust, Inc. or a subsidiary thereof; or
|_| Pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
|_| To an Institutional Accredited Investor pursuant to and in compliance
with the Securities Act of 1933, as amended; or
|_| Pursuant to and in compliance with Regulation S under the Securities
Act of 1933, as amended; or
|_| Pursuant to and in compliance with Rule 144 under the Securities Act of
1933, as amended; or
|_| Pursuant to an effective registration statement.
and unless the box below is checked, the undersigned confirms that such
Convertible Debenture is not being transferred to an "affiliate" of the Company
as defined in Rule 144 under the Securities Act of 1933, as amended (an
"Affiliate"):
|_| The transferee is an Affiliate of the Company.
Dated: _____________________________
------------------------------------------
------------------------------------------
Signature(s)
- -------------------------------------
Signature Guarantee*
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Convertible Debenture in every particular
without alteration or enlargement or any change whatever.
- --------
* (Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
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EXHIBIT B
[(FORM OF FACE OF NON-CONVERTIBLE DEBENTURE)]
No. __________ CUSIP NO. __________
CAPITAL TRUST, INC.
13.00% STEP UP NON-CONVERTIBLE JUNIOR SUBORDINATED DEBENTURE
PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE, ANY CERTIFICATE EVIDENCING A
NON-CONVERTIBLE DEBENTURE SHALL BEAR A LEGEND IN SUBSTANTIALLY THE FOLLOWING
FORM, UNLESS OTHERWISE AGREED BY THE COMPANY (WITH WRITTEN NOTICE THEREOF TO THE
TRUSTEE): THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO CAPITAL TRUST,
INC. (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE NON-CONVERTIBLE
DEBENTURES, AS THE CASE MAY BE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR TRANSFER AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE NON-CONVERTIBLE
DEBENTURES, AS THE CASE MAY BE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE FOR THE CONVERTIBLE PREFERRED
SECURITIES OR THE NON-CONVERTIBLE DEBENTURES, AS THE CASE MAY BE, SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR CT
CONVERTIBLE TRUST I MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION,"
932388.8
<PAGE>
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT. THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH IN THE AMENDED AND RESTATED INDENTURE
REFERRED TO HEREIN.
NO LATER THAN 10 DAYS AFTER THE ISSUE DATE OF THE NON-CONVERTIBLE DEBENTURES,
INFORMATION CONCERNING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT,
THE ISSUE DATE, AND THE YIELD TO MATURITY OF THE NON-CONVERTIBLE DEBENTURES MAY
BE OBTAINED FROM THE CHIEF FINANCIAL OFFICER OF CAPITAL TRUST, INC. AT 605 THIRD
AVENUE, 26TH FLOOR, NEW YORK, NY 10016.
Capital Trust, Inc., a Maryland corporation and successor to Capital Trust,
a California business trust (the "Company", which term includes any successor
corporation under the Amended and Restated Indenture hereinafter referred to on
the reverse hereof), for value received, hereby promises to pay to, Wilmington
Trust Company, as Institutional Trustee (the "Institutional Trustee") for CT
Convertible Trust I or registered assigns, the principal sum of Sixty-Two
Million One Hundred Twenty-Six Thousand Dollars ($62,126,000) on September 30,
2018 and to pay interest on said principal sum from May 10, 2000 (the "Issuance
Date"), or from the most recent interest payment date to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on March 31, June 30, September 30, and December 31 (each such date,
an "Interest Payment Date") of each year commencing June 30, 2000 at the rate of
13.00% per annum from and including the Issuance Date to and including September
30, 2004, such rate of interest per annum automatically increasing by an
additional .75% per annum (any such increase shall be cumulative with any such
prior increase(s)) on October 1, 2004 and again on each subsequent October 1,
until the principal hereof shall have become due and payable, and on any overdue
principal and premium, and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months. The amount of interest payable for any period shorter than a full
quarterly period for which interest is computed, will be computed on the basis
of the actual number of days elapsed per 30-day month. In the event that any
date on which interest is payable on this Non- Convertible Debenture is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Amended and
Restated Indenture (referred to on the reverse hereof) be paid to the person in
whose name this Non-Convertible Debenture (or one or more predecessor
Non-Convertible Debentures) is registered on the record date for such interest
installment, which shall be the close of business on the fifteenth day prior to
such Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such record date and may be paid to the Person in whose name this
Non-Convertible Debenture (or one or more predecessor Non-Convertible
Debentures) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of the Non-Convertible
Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Non-Convertible Debentures
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Amended and Restated Indenture. The principal of (and
premium, if any) and the interest on this Non-Convertible Debenture shall be
payable at the office or agency of the Trustee maintained for that purpose in
any coin or currency of the United States of America that at the time of payment
is legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Non-Convertible
Debenture is the Institutional Trustee, the payment of the principal of (and
premium, if any) and interest on this Non-Convertible Debenture will be made at
such place and to such account as may be designated by the Institutional
Trustee.
The indebtedness evidenced by this Non-Convertible Debenture is, to the
extent provided in the Amended and Restated Indenture, subordinate and junior in
right of payment to the prior payment in full of all Senior Indebtedness,
932388.8
B-2
<PAGE>
and this Non-Convertible Debenture is issued subject to the provisions of the
Amended and Restated Indenture with respect thereto. Each Holder of this
Non-Convertible Debenture, 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 action as may be necessary or appropriate to acknowledge or
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, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Amended and Restated
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Non-Convertible Debenture shall not be entitled to any benefit under
the Amended and Restated Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of Authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Non-Convertible Debenture are continued on the
reverse side hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth at this place.
Capitalized terms used but not defined herein shall have the meaning given
them in the Amended and Restated Indenture.
932388.8
B-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
CAPITAL TRUST, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
932388.8
B-4
<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Non-Convertible Debentures described in the
within-mentioned Amended and Restated Indenture.
Dated: May 10, 2000
WILMINGTON TRUST COMPANY,
as Trustee
By: ________________________________
Authorized Signatory
932388.8
B-5
<PAGE>
[FORM OF REVERSE OF NON-CONVERTIBLE DEBENTURE]
This Non-Convertible Debenture is one of the 13.00% Step Up
Non-Convertible Junior Subordinated Debentures (herein referred to as the
"Non-Convertible Debentures" or "Debentures"), all issued or to be issued under
and pursuant to an Amended and Restated Indenture dated as of May 10, 2000, duly
executed and delivered between the Company and Wilmington Trust Company, as
Trustee (the "Trustee") (the "Amended and Restated Indenture"), to which Amended
and Restated Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Non-Convertible Debentures. The Non-Convertible Debentures are limited in
aggregate principal amount as specified in the Amended and Restated Indenture.
The Company shall have the right to redeem this Non-Convertible
Debenture at the option of the Company, upon not less than 30 nor more than 60
days notice, without premium or penalty, in whole or in part at any time after
the date hereof (an "Optional Redemption") at a price equal to 100% of the
principal amount of the Non-Convertible Debentures (the "Optional Redemption
Price") together with accrued and unpaid interest (including Additional Sums, if
any, and, to the extent permitted by applicable law, Compound Interest, if any)
to, but excluding, the redemption date.
If Non-Convertible Debentures are redeemed on any March 31, June 30,
September 30, or December 31, accrued and unpaid interest shall be payable to
holders of record on the relevant record date.
So long as the corresponding Non-Convertible Amount of Trust Securities
is outstanding, the proceeds from the redemption of any of the Non-Convertible
Debentures will be used to redeem such Non-Convertible Amount of Trust
Securities.
If the Non-Convertible Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Non-Convertible Debentures will
be redeemed pro rata.
In the event of redemption of this Non-Convertible Debenture in part
only, a new Non-Convertible Debenture or Non-Convertible Debentures for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
In case an Event of Default, as defined in the Amended and Restated
Indenture, shall have occurred and be continuing, the principal of all of the
Non-Convertible Debentures and the interest accrued thereon may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Amended and Restated
Indenture.
The Amended and Restated Indenture contains provisions permitting the
Company and the Trustee, with the consent of the Holders of a majority of the
aggregate principal amount of the Debentures of a series at the time
Outstanding, evidenced as provided in the Amended and Restated Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Amended and Restated
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Debentures of such series; provided, however, that no such
supplemental indenture shall (i) extend the Stated Maturity of any Debenture, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
upon redemption thereof, or impair or affect the right of any Holder to
institute suit for the payment thereof, without the consent of the Holder of
each Debenture so affected, or (ii) reduce the aforesaid percentage of
Debentures of such series, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holder of each Debenture
of such series. It is also provided in the Amended and Restated Indenture that,
with respect to certain defaults or Events of Default regarding the Debentures,
prior to any declaration accelerating the maturity of such Debentures, the
Holders of a majority in aggregate principal amount Outstanding of such
Debentures (or, in the case of certain defaults or Events of Default, all of the
Debentures), may on behalf of the Holders of all the Debentures of such series
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Debentures. Any such
consent or waiver
932388.8
B-6
<PAGE>
by the Holder of this Non-Convertible Debenture (unless revoked as provided in
the Amended and Restated Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Non-Convertible Debenture
and any Non-Convertible Debenture which may be issued in exchange or
substitution therefor, irrespective of whether or not any notation thereof is
made upon this Non-Convertible Debenture or such other Non-Convertible
Debenture.
No reference herein to the Amended and Restated Indenture and no
provision of this Non-Convertible Debenture or of the Amended and Restated
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and premium, if any, and interest on
this Non-Convertible Debenture at the time and place and at the rate and in the
money herein prescribed.
As long as an Event of Default under Section 5.1(a) of the Amended and
Restated Indenture shall not have occurred and be continuing, the Company shall
have the right at any time during the term of the Non-Convertible Debentures and
from time to time to extend the interest payment period of such Non-Convertible
Debentures for up to 20 consecutive quarters (an "Extension Period"), at the end
of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Non-Convertible
Debentures to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extension Period, the
Company may further extend such Extension Period, provided that such Extension
Period together with all such further extensions thereof shall not exceed 20
consecutive quarters. At the termination of any such Extension Period and upon
the payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extension Period.
As provided in the Amended and Restated Indenture and subject to
certain limitations therein set forth, this Non-Convertible Debenture is
transferable by the registered Holder hereof on the Security Register of the
Company, upon surrender of this Non-Convertible Debenture for registration of
transfer at the office or agency of the Trustee in the City and State of New
York accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Non-Convertible Debentures of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Non-Convertible Debenture, the Company, the Trustee, any paying agent and the
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Non-Convertible Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Non-Convertible Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Amended and
Restated Indenture, against any incorporator, shareholder, officer or director,
trustee, past, present or future, as such, of the Company or of any predecessor
or successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Non-Convertible Debentures are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Amended and Restated Indenture and subject to certain
limitations therein set forth, Non-Convertible Debentures are exchangeable for a
like aggregate principal amount of Non-Convertible Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
THE AMENDED AND RESTATED INDENTURE AND THE NON-CONVERTIBLE DEBENTURES
SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE
OF
932388.8
B-7
<PAGE>
NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID
STATE.
932388.8
B-8
<PAGE>
ASSIGNMENT
[FORM OF ASSIGNMENT FOR NON-CONVERTIBLE DEBENTURES]
For value received__________________________ hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(Please insert social security or other taxpayer identification number of
assignee) the within Non-Convertible Debenture and hereby irrevocably
constitutes and appoints _______ attorney to transfer the said Non-Convertible
Debenture on the books of the Company, with full power of substitution in the
premises.
In connection with any transfer of the within Non-Convertible Debenture
occurring prior to the Transfer Restriction Termination Date, the undersigned
confirms that such Non-Convertible Debenture is being transferred:
|_| To Capital Trust, Inc. or a subsidiary thereof; or
|_| Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
|_| To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
|_| Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
|_| Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended; or
|_| Pursuant to an effective registration statement.
and unless the box below is checked, the undersigned confirms that such
Non-Convertible Debenture is not being transferred to an "affiliate" of the
Company as defined in Rule 144 under the Securities Act of 1933, as amended (an
"Affiliate"):
|_| The transferee is an Affiliate of the Company.
Dated: _____________________________
------------------------------------------
------------------------------------------
Signature(s)
- -------------------------------------
Signature Guarantee*
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Non-Convertible Debenture in every
particular without alteration or enlargement or any change whatever.
- --------
* (Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
932388.8
B-9
<PAGE>
EXHIBIT C
Wilmington Trust Company
1100 North Market Street
9th Floor
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Ladies and Gentleman:
Pursuant to Section 11.1 of the Amended and Restated Indenture, dated
as of May 10, 2000 between Capital Trust, Inc., a Maryland corporation
(the"Company") and Wilmington Trust Company, (the "Trustee"), the Company has
elected to defer payments of interest by extending the interest payment period
of such Debentures (as defined in the Amended and Restated Indenture) for the
fiscal quarter ended [ ]. This will serve to certify that the Company's election
to defer such interest payments resulted from a business judgment that the
Company does not, and is not expected during the period of extension to have or
generate from ordinary operations the cash resources, nor have the ability to
borrow on favorable terms the necessary funds in order to fund the payment of
the deferred interest after due and good faith consideration to the Company's
financial condition and anticipated cash requirements.
Sincerely yours,
[Chief Financial Officer] [Treasurer]
932388.8
B-10
AMENDED AND RESTATED DECLARATION OF TRUST
CT CONVERTIBLE TRUST I
DATED AS OF MAY 10, 2000
932747.9
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I INTERPRETATION AND DEFINITIONS.....................................................................2
SECTION 1.1. Definitions...................................................................2
ARTICLE II TRUST INDENTURE ACT................................................................................9
SECTION 2.1. Trust Indenture Act: Application..............................................9
SECTION 2.2. Lists of Holders of Securities................................................9
SECTION 2.3. Reports by the Institutional Trustee.........................................10
SECTION 2.4. Periodic Reports to Institutional Trustee....................................10
SECTION 2.5. Evidence of Compliance with Conditions Precedent.............................10
SECTION 2.6. Events of Default; Waiver....................................................10
SECTION 2.7. Event of Default; Notice.....................................................12
ARTICLE III ORGANIZATION......................................................................................12
SECTION 3.1. Name.........................................................................12
SECTION 3.2. Office.......................................................................13
SECTION 3.3. Purpose......................................................................13
SECTION 3.4. Authority....................................................................13
SECTION 3.5. Title to Property of the Trust...............................................13
SECTION 3.6. Powers and Duties of the Regular Trustees....................................14
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees.........................16
SECTION 3.8. Powers and Duties of the Institutional Trustee...............................16
SECTION 3.9. Certain Duties and Responsibilities of the Institutional Trustee.............18
SECTION 3.10. Certain Rights of Institutional Trustee......................................20
SECTION 3.11. Delaware Trustee.............................................................22
SECTION 3.12. Execution of Documents.......................................................22
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.......................22
SECTION 3.14. Duration of Trust............................................................22
SECTION 3.15. Mergers......................................................................22
ARTICLE IV SPONSOR...........................................................................................24
SECTION 4.1. Sponsor's Acquisition of Common Securities...................................24
SECTION 4.2. Responsibilities of the Sponsor..............................................24
ARTICLE V TRUSTEES..........................................................................................24
SECTION 5.1. Number of Trustees...........................................................24
SECTION 5.2. Delaware Trustee.............................................................25
SECTION 5.3. Institutional Trustee; Eligibility...........................................25
SECTION 5.4. Certain Qualifications of Regular Trustees and Delaware
Trustee Generally............................................................25
SECTION 5.5. Regular Trustees.............................................................26
SECTION 5.6. Appointment, Removal and Resignation of Trustees.............................27
SECTION 5.7. Vacancies Among Trustees.....................................................27
SECTION 5.8. Effect of Vacancies..........................................................27
SECTION 5.9. Meetings.....................................................................27
SECTION 5.10. Delegation of Power..........................................................28
SECTION 5.11. Merger, Conversion, Consolidation or Succession to Business..................28
ARTICLE VI DISTRIBUTIONS.....................................................................................28
SECTION 6.1. Distributions................................................................28
932747.9
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<PAGE>
Page
ARTICLE VII ISSUANCE OF SECURITIES............................................................................29
SECTION 7.1. General Provisions Regarding Securities......................................29
SECTION 7.2. Execution and Authentication.................................................29
SECTION 7.3. Form and Dating..............................................................30
SECTION 7.4. Paying Agent.................................................................30
ARTICLE VIII TERMINATION OF TRUST..............................................................................31
SECTION 8.1. Termination of Trust.........................................................31
ARTICLE IX TRANSFER OF INTERESTS.............................................................................32
SECTION 9.1. Transfer of Securities.......................................................32
SECTION 9.2. Transfer of Certificates.....................................................35
SECTION 9.3. Deemed Holders of Securities.................................................35
SECTION 9.4. Mutilated, Destroyed, Lost or Stolen Certificates............................35
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS................................................................................36
SECTION 10.1. Liability....................................................................36
SECTION 10.2. Exculpation..................................................................36
SECTION 10.3. Fiduciary Duty...............................................................36
SECTION 10.4. Indemnification..............................................................37
SECTION 10.5. Outside Business.............................................................40
ARTICLE XI ACCOUNTING........................................................................................40
SECTION 11.1. Fiscal Year..................................................................40
SECTION 11.2. Certain Accounting Matters...................................................40
SECTION 11.3. Banking......................................................................41
SECTION 11.4. Withholding..................................................................41
ARTICLE XII AMENDMENTS AND MEETINGS...........................................................................41
SECTION 12.1. Amendments...................................................................41
SECTION 12.2. Meetings of the Holders of Securities; Action by Written Consent.............44
ARTICLE XIII REPRESENTATIONS OF SPONSOR, INSTITUTIONAL TRUSTEE AND
DELAWARE TRUSTEE..................................................................................45
SECTION 13.1. Representations and Warranties of Institutional Trustee......................45
SECTION 13.2. Representations and Warranties of Delaware Trustee...........................46
SECTION 13.3. Representations, Warranties and Covenants of Sponsor.........................46
ARTICLE XIV MISCELLANEOUS.....................................................................................47
SECTION 14.1. Notices......................................................................47
SECTION 14.2. Governing Law................................................................48
SECTION 14.3. Intention of the Parties.....................................................48
SECTION 14.4. Headings.....................................................................48
SECTION 14.5. Successors and Assign........................................................48
SECTION 14.6. Partial Enforceability.......................................................48
SECTION 14.7. Counterparts.................................................................48
SECTION 14.8. Accrued Distributions........................................................48
</TABLE>
932747.9
-ii-
<PAGE>
CROSS-REFERENCE TABLE*
Section of Trust Indenture Act Section of
of 1939, as amended Amended and Restated Declaration
- -------------------------------- --------------------------------
310(a)............................................. 5.3(a)
310(c)............................................. Inapplicable
311(c)............................................. Inapplicable
312(a)............................................. 2.2(a)
312(b)............................................. 2.2(b)
313................................................ 2.3
314(a)............................................. 2.4
314(b)............................................. Inapplicable
314(c)............................................. 2.5
314(d)............................................. Inapplicable
314(f)............................................. Inapplicable
315(a)............................................. 3.9(b)
315(c)............................................. 3.9(a)
315(d)............................................. 3.9(b)
316(a)............................................. Annex I
316(c)............................................. 3.6(e)
- -----------------
* This Cross-Reference table does not constitute part of the Amended and
Restated Declaration and shall not affect the interpretation of any of its terms
or provisions.
932747.9
-iii-
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
OF
CT CONVERTIBLE TRUST I
May 10, 2000
AMENDED AND RESTATED DECLARATION OF TRUST ("Amended and Restated
Declaration") dated and effective as of May 10, 2000, by the Trustees (as
defined herein), the Sponsor (as defined herein) and by the holders, from time
to time, of undivided beneficial interests in the Trust to be issued pursuant to
this Amended and Restated Declaration;
WHEREAS, the Trustees and the Sponsor's predecessor established CT
Convertible Trust I (the "Trust"), a trust under the Business Trust Act (as
defined herein), pursuant to a certificate of trust filed with the Secretary of
State of the State of Delaware on July 28, 1998 (the "Certificate of Trust"),
for the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain debentures (the "Original Debentures") of the
Debenture Issuer (as defined herein) issued pursuant to a certain indenture,
dated as of July 28, 1998 (the "Initial Indenture");
WHEREAS, the Trustees and the Sponsor's predecessor executed a certain
declaration of trust (the "Initial Declaration"), dated and effective as of July
28, 1998, by the Trustees, the Sponsor's predecessor and the holders, from time
to time, of undivided beneficial interests in the Trust;
WHEREAS, pursuant to a first supplemental indenture, dated as of
January 28, 1999 (the "First Supplemental Indenture" and, together with the
Initial Indenture, the "Indenture"), entered into upon consummation of the
merger of the predecessor of the Sponsor with and into the Sponsor, the Sponsor
has assumed all the obligations of its predecessor under the Original Debentures
and the Indenture;
WHEREAS, pursuant to the terms of the Initial Declaration, the Sponsor
succeeded to the obligations of its predecessor under the Initial Declaration;
WHEREAS, the Institutional Trustee, as defined herein, is the Holder of
all of the Original Debentures outstanding as of the date hereof (the "Debenture
Holder") in its capacity as Institutional Trustee under the Initial Declaration;
WHEREAS, pursuant to the Initial Declaration (i) Vornado Realty L.P., a
Delaware limited partnership ("VRLP"), EOP Operating Limited Partnership, a
Delaware limited partnership ("EOPLP"), and Mellon Bank N.A., as trustee for
General Motors Corporation Hourly-Rate Employes Pension Trust, a New York trust,
and Mellon Bank N.A., as trustee for General Motors Salaried Employes Pension
Trust, a New York trust (whose interests with respect to the Trust have been
succeeded to by GM Trust, as defined herein) were issued an aggregate of
$150,000,000 in liquidation amount of 8.25% step up convertible trust preferred
securities (the "Original Convertible Preferred Securities") representing
undivided beneficial interests in the assets of the Trust and (ii) the Sponsor
was issued an aggregate of $4,650,000 in liquidation amount of 8.25% step up
convertible trust common securities (the "Original Common Securities")
representing undivided beneficial interests in the assets of the Trust;
WHEREAS, the Sponsor and certain of its affiliates and certain
affiliates of Citigroup Investments Inc., a Delaware corporation, are parties to
that certain venture agreement, dated as of March 8, 2000 (the "Venture
Agreement"), pursuant to which, among other things, the parties thereto will
co-sponsor, commit to invest capital in, and manage, real estate mezzanine
investment opportunity funds; provided, however, that prior to the commencement
of such activity (i) the Sponsor, VRLP, EOPLP and GM Trust enter into a
termination agreement that would terminate that certain co-investment agreement,
dated as of July 28, 1999, among the parties thereto
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and (ii) the Sponsor, VRLP, EOPLP and GM Trust enter into a modification
agreement that would amend the Indenture and the Initial Declaration in order to
modify the terms of the Original Convertible Preferred Securities and the
Original Common Securities to provide the Sponsor with significantly greater
flexibility with regard to electing to be taxed as a REIT as required in the
Venture Agreement;
WHEREAS, each Holder of the Original Convertible Preferred Securities
and the Original Common Securities has provided the Trustees with its
irrevocable consent to this Amended and Restated Declaration which will
establish and provide for the issuance by the Trust of Convertible Preferred
Securities (as defined herein) with an aggregate liquidation amount of
$150,000,000 and Common Securities (as defined herein) with an aggregate
liquidation amount of $4,650,000; and
WHEREAS, Section 12.1 of the Initial Declaration provides that such
consent, together with the consent of each Trustee, is sufficient to amend the
Initial Declaration;
WHEREAS, the Indenture was amended and restated by the Amended and
Restated Indenture;
WHEREAS, pursuant to the Amended and Restated Indenture, the Sponsor
has issued to the Institutional Trustee, in trust for the Trust and the holders
of Convertible Preferred Securities and Common Securities, Convertible
Debentures (as defined herein) with an aggregate principal amount of $92,524,000
and Non- Convertible Debentures (as defined herein) with an aggregate principal
amount of $62,126,000;
WHEREAS, all things necessary to make this Amended and Restated
Declaration a valid agreement of the Sponsor and the Trustees and a valid
amendment of and supplement to the Initial Declaration have been done.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Amended and Restated Declaration constitute the governing instrument of
such business trust, the Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Amended and
Restated Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Amended and Restated Declaration but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Amended and Restated Declaration
has the same meaning throughout;
(c) all references to "the Declaration," "this Declaration," "the
Amended and Restated Declaration" or "this Amended and Restated Declaration" are
to this Amended and Restated Declaration as modified, supplemented or amended
from time to time;
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(d) all references in this Amended and Restated Declaration to Articles
and Sections and Annexes and Exhibits are to Articles and Sections of and
Annexes and Exhibits of or to this Amended and Restated Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Amended and Restated Declaration unless otherwise defined in this
Amended and Restated Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Conversion Agent.
"Amended and Restated Indenture" means that certain amended and
restated indenture, dated as of the date hereof, between the Sponsor and
Wilmington Trust Company, a banking corporation duly organized and existing
under the laws of the State of Delaware, as trustee thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in New York, New York or Wilmington, Delaware
are permitted or required by any applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Codess.3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, units representing interests, participations, rights in or other
equivalents (however designated) of such Person's capital stock, including, with
respect to partnerships, limited liability companies and business trusts,
partnership interests (whether general or limited), limited liability company
interests, beneficial interests and any other interest or participation that
confers upon a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, limited liability company or
business trust, and any rights (other than debt securities convertible into
capital stock), warrants or options exchangeable for or convertible into such
capital stock.
"Capital Trust" has the meaning set forth under the definition of
"Sponsor."
"Certificate" means a Common Securities Certificate or a Convertible
Preferred Securities Certificate.
"Certificate of Trust" has the meaning specified in the first Whereas
clause hereof.
"Class A Common Stock" means the class A common stock, par value $.01
per share, of the Company.
"Closing Price" has the meaning specified in Annex I.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
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"Common Securities" has the meaning specified in Section 7.1.
"Common Securities Certificate" means a definitive certificate in fully
registered form representing Common Securities, and setting forth the aggregate
Convertible Amount (expressed in liquidation amount) and Non-Convertible Amount
(expressed in liquidation amount) of the Common Securities represented,
substantially in the form of Exhibit A-2.
"Common Securities Guarantee" means the amended and restated guarantee
agreement to be dated as of the date hereof of the Sponsor in respect of the
Common Securities.
"Common Stock" means the class A common stock, par value $.01 per
share, of the Company and any other shares of capital stock as may constitute
"Common Stock" under the Amended and Restated Indenture.
"Company" means Capital Trust, Inc., a Maryland corporation.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, stockholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Conversion Agent" has the meaning specified in Section 7.4.
"Convertible Amount" means such portion of the liquidation amount of
any Security as is convertible into Class A Common Stock in accordance with
Section 5 of Annex I hereto. As of the date hereof, the aggregate Convertible
Amount of outstanding Securities is $92,524,000.
"Convertible Coupon Rate" has the meaning specified in Section 2(a)(i)
of Annex I hereto.
"Convertible Debentures" means the series of Convertible Debentures
with an initial aggregate principal amount of $92,524,000 issued by the
Debenture Issuer as of the date hereof under the Amended and Restated Indenture
to be held by the Institutional Trustee, a specimen certificate for such series
of Debentures being Exhibit B.
"Convertible Debentures Payment Amount" has the meaning specified in
Section 6.1.
"Convertible Preferred Securities" has the meaning specified in Section
7.1.
"Convertible Preferred Securities Certificate" means a certificate
representing Preferred Securities, and setting forth the aggregate Convertible
Amount (expressed in liquidation amount) and Non-Convertible Amount (expressed
in liquidation amount) of the Convertible Preferred Securities represented,
substantially in the form of Exhibit A-1.
"Convertible Preferred Securities Guarantee" means the amended and
restated guarantee agreement to be dated as of the date hereof of the Sponsor in
respect of the Convertible Preferred Securities.
"Convertible Redemption Price" has the meaning specified in Section
4(a)(i) of Annex I.
"Corporate Trust Office" means the office of the Institutional Trustee
at which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at 1100 North Market Street, 9th Floor,
Wilmington, Delaware 19890-0001, Attention Corporate Trust Administration.
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"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Capital Trust, Inc., a Maryland corporation,
in its capacity as issuer of the Debentures under the Amended and Restated
Indenture.
"Debenture Trustee" means Wilmington Trust Company, as trustee under
the Amended and Restated Indenture until a successor is appointed thereunder,
and thereafter means such successor trustee.
"Debentures" means the Convertible Debentures and/or the
Non-Convertible Debentures.
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"EOPLP" has the meaning specified in the sixth Whereas clause hereof.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Amended and Restated Indenture) has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"GM Trust" means State Street Bank and Trust Company, as trustee for
General Motors Employes Global Group Pension Trust, a New York trust and
successor to both General Motors Hourly-Rate Employes Pension Trust, a New York
trust, and General Motors Salaried Employes Pension Trust, a New York trust.
"Holder" means a Person in whose name a Certificate representing
Securities is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act.
"Indemnified Person" means each Company Indemnified Person and each
Fiduciary Indemnified Person.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I hereto.
"Issuance Date" means May 10, 2000.
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"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidated Distribution" has the meaning specified in the terms of the
Securities as set forth in Annex I.
"List of Holders" has the meaning set forth in Section 2.2.
"Majority in liquidation amount" means, except as provided in the terms
of the Convertible Preferred Securities or by the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class or, as the context
may require, Holders of outstanding Convertible Preferred Securities, Holders of
outstanding Convertible Amount of Convertible Preferred Securities, Holders of
outstanding Non-Convertible Amount of Convertible Preferred Securities, Holders
of outstanding Common Securities, Holders of outstanding Convertible Amount of
Common Securities, Holders of outstanding Non-Convertible Amount of Common
Securities, Holders of outstanding Convertible Amount of Securities or Holders
of outstanding Non-Convertible Amount of Securities, voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class or of the outstanding Convertible Amount of Convertible
Preferred Securities, of the outstanding Non-Convertible Amount of Convertible
Preferred Securities, of the outstanding Convertible Amount of Common
Securities, of the outstanding Non-Convertible Amount of Common Securities, of
the outstanding Convertible Amount of Securities or of the outstanding
Non-Convertible Amount of Securities, as the context requires.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"Modification Agreement" means the Modification agreement, dated as of
the date hereof, by and among the Sponsor, the Regular Trustees and the holders
of the Original Convertible Preferred Securities.
"Non-Convertible Amount" means such portion of the liquidation amount
of any Security as is not convertible into Class A Common Stock pursuant to
Annex I hereto. As of the date hereof, the aggregate Non- Convertible Amount of
outstanding Securities is $62,126,000.
"Non-Convertible Coupon Rate" has the meaning specified in Section
2(a)(ii) of Annex I hereto.
"Non-Convertible Debentures" means the series of Non-Convertible
Debentures with an initial aggregate principal amount of $62,126,000 issued as
of the date hereof by the Debenture Issuer under the Amended and Restated
Indenture to be held by the Institutional Trustee, a specimen certificate for
such series of Debentures being Exhibit C.
"Non-Convertible Debentures Payment Amount" has the meaning specified
in Section 6.1.
"Non-Convertible Redemption Price" has the meaning specified in Section
4(a)(ii) of Annex I.
"Non-U.S. Person" means a Person other than a U.S. person (as such term
is defined in Regulation S).
"Offeror" has the meaning set forth in Section 9.1(e).
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"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Amended and Restated Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Original Common Securities" has the meaning specified in the sixth
Whereas clause hereof.
"Original Convertible Preferred Securities" has the meaning specified
in the sixth Whereas clause hereof.
"Original Debentures" has the meaning specified in the first Whereas
clause hereof.
"Original Securities" means the Original Common Securities and the
Original Convertible Preferred Securities.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Regulation S" means Regulation S under the Securities Act or any
successor provision.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly-owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above-designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
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"Restricted Securities" has the meaning specified in Section 9.1(d).
"Rule 144A" means Rule 144A as promulgated under the Securities Act, or
any successor rule.
"Rule 144(k)" means Rule 144(k) as promulgated under the Securities
Act, or any successor rule.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
successor rule.
"Sales Notice" has the meaning set forth in Section 9.1(e).
"Securities" means the Common Securities and the Convertible Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Convertible Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Section 4(c) of Annex I
hereto.
"Sponsor" or "Capital Trust" means Capital Trust, Inc., a Maryland
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Securities" has the meaning set forth in Section 3.15(b).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"Transfer Restriction Termination Date" means the earlier of the first
date on which (i) the Securities and any shares of Class A Common Stock issued
or issuable upon the conversion or exchange of the Securities (other than (A)
Securities acquired by the Trust or any Affiliate thereof and (B) shares of
Class A Common Stock issued upon the conversion or exchange of any Securities
described in clause (A) above) may be sold pursuant to Rule 144(k) and (ii) all
the Securities have been sold pursuant to an effective registration statement.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury.
"Trustee" or "Trustees" means each Person who has signed this Amended
and Restated Declaration as a trustee, so long as such Person shall continue in
office in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
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"Trust Property" means (i) the Debentures, (ii) any cash on deposit in,
or owing to, the Institutional Trustee Account and (iii) all proceeds and rights
in respect of the foregoing to be held by the Institutional Trustee pursuant to
the terms of this Amended and Restated Declaration for the benefit of the
Securityholders.
"25% in liquidation amount" means, except as provided in the terms of
the Convertible Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Convertible Preferred Securities, Holders of
outstanding Convertible Amount of Convertible Preferred Securities, Holders of
outstanding Non-Convertible Amount of Convertible Preferred Securities, Holders
of outstanding Common Securities, Holders of outstanding Convertible Amount of
Common Securities, Holders of outstanding Non-Convertible Amount of Common
Securities, Holders of outstanding Convertible Amount of Securities or Holders
of outstanding Non-Convertible Amount of Securities, voting separately as a
class, who are the record owners of 25% or more of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class or of the outstanding Convertible Amount of Convertible
Preferred Securities, of the outstanding Non-Convertible Amount of Convertible
Preferred Securities, of the outstanding Convertible Amount of Common
Securities, of the outstanding Non-Convertible Amount of Common Securities, of
the outstanding Convertible Amount of Securities or of the outstanding
Non-Convertible Amount of Securities, as the context requires.
"VRLP" has the meaning specified in the sixth Whereas clause hereof.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act: Application.
(a) This Amended and Restated Declaration is subject to the provisions
of the Trust Indenture Act that are required to be part of this Amended and
Restated Declaration and shall, to the extent applicable, be governed by such
provisions. The Trust Indenture Act shall be applicable to this Amended and
Restated Declaration except as otherwise set forth herein, as if the Securities
had been sold pursuant to an effective registration statement.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If, and to the extent that, any provision of this Amended and
Restated Declaration limits, qualifies or conflicts with the duties imposed by
ss.ss. 310 to 317, inclusive, of the Trust Indenture Act, such duties imposed
under the Trust Indenture Act shall control.
(d) The application of the Trust Indenture Act to this Amended and
Restated Declaration shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 2.2. Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list in such form as the Institutional
Trustee may reasonably require of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that, neither
the Sponsor nor the Regular Trustees on behalf of the
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Trust shall be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the
Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Institutional Trustee. The Institutional
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in the Lists of Holders given to it or which it receives
in the capacity as Paying Agent (if acting in such capacity), provided that, the
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
ss.ss. 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Institutional Trustee.
Within 60 days after December 31 of each year, the Institutional
Trustee shall provide to the Holders of the Convertible Preferred Securities
such reports as are required by ss. 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by ss. 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the requirements of ss. 313(d) of
the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such documents, reports and
information as required by ss. 314 (if any) and the compliance certificate
required by ss. 314 of the Trust Indenture Act in the form, in the manner and at
the times required by ss. 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the
Institutional Trustee is for informational purposes only and the Institutional
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Sponsor's compliance with any of its covenants hereunder
(as to which the Institutional Trustee is entitled to rely exclusively on
Officers' Certificates).
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Amended and Restated
Declaration that relate to any of the matters set forth in ss. 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to ss. 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6. Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of the Convertible
Preferred Securities may by vote on behalf of the Holders of all of the
Convertible Preferred Securities, waive any past Event of Default in respect of
the Convertible Preferred Securities and its consequences; provided, that if the
Event of Default relates only to Convertible Amount of Convertible Preferred
Securities, then only the Holders of a Majority in liquidation amount of
Convertible Amount of Convertible Preferred Securities may, on behalf of the
Holders of Convertible Amount of Convertible Preferred Securities, waive such
Event of Default; provided, further, that if the Event of Default relates only
to Non-Convertible Amount of Convertible Preferred Securities, then only the
Holders of a Majority in liquidation amount of Non-Convertible Amount of
Convertible Preferred Securities may, on behalf of
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the Holders of Non-Convertible Amount of Convertible Preferred Securities, waive
such Event of Default; and provided that, if the underlying Event of Default
under the Amended and Restated Indenture:
(i) is not waivable under the Amended and Restated
Indenture, the Event of Default under this Amended
and Restated Declaration shall also not be waivable;
or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the
Debentures or of a series thereof (a "Super
Majority") to be waived under the Amended and
Restated Indenture, the Event of Default under this
Amended and Restated Declaration may only be waived
by the vote of the Holders of at least the
proportion of Convertible Amount (where such series
is the Convertible Debentures) or Non-Convertible
Amount (where such series is the Non-Convertible
Debentures) of the Convertible Preferred Securities
that the relevant Super Majority represents of the
aggregate principal amount of the Debentures or of a
series thereof outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of ss.
316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Amended and Restated
Declaration and the Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such default shall cease to exist, and any Event of Default
with respect to the Convertible Preferred Securities or portion thereof, as the
case may be, arising therefrom shall be deemed to have been cured, for every
purpose of this Amended and Restated Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of Default with respect to
the Convertible Preferred Securities or portion thereof, as the case may be, or
impair any right consequent thereon. Any waiver by the Holders of the
Convertible Preferred Securities or portion thereof, as the case may be, of an
Event of Default with respect to the Convertible Preferred Securities shall also
be deemed to constitute a waiver by the Holders of the Common Securities of any
such Event of Default with respect to the Common Securities for all purposes of
this Amended and Restated Declaration without any further act, vote, or consent
of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Amended and Restated Indenture:
(i) is not waivable under the Amended and Restated
Indenture, except where the Holders of the Common
Securities are deemed to have waived such Event of
Default under this Amended and Restated Declaration
as provided below in this Section 2.6(b), the Event
of Default under this Amended and Restated
Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of
Default under this Amended and Restated Declaration
as provided below in this Section 2.6(b), the Event
of Default under this Amended and Restated
Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation
amount of the Common Securities that the relevant
Super Majority represents of the aggregate principal
amount of the Debentures or series thereof
outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Convertible Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Institutional Trustee shall act solely on behalf of
the Holders of the Convertible Preferred Securities and only the Holders of the
Convertible
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Preferred Securities will have the right to direct the Institutional Trustee to
act in accordance with the terms of the Securities. The foregoing provisions of
this Section 2.6(b) shall be in lieu of ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this Amended and Restated
Declaration and the Securities, as permitted by the Trust Indenture Act. Subject
to the foregoing provisions of this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been cured for every
purpose of this Amended and Restated Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Amended and Restated
Indenture by the Institutional Trustee at the direction of the Holders of the
Convertible Preferred Securities, constitutes a waiver of the corresponding
Event of Default under this Amended and Restated Declaration. The foregoing
provisions of this Section 2.6(c) shall be in lieu of ss. 316(a)(1)(B) of the
Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Amended and Restated Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7. Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible Officer of the
Institutional Trustee, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all such defaults with respect to the
Securities unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Event of Default as defined in the Amended and Restated
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures or in the payment of any sinking fund
installment established for any of the Debentures, the Institutional Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Institutional Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Convertible
Amounts of Securities (if such Event of Default relates to the Convertible
Debentures) or the Holders of Non-Convertible Amounts of Securities (if such
Event of Default relates to the Non-Convertible Debentures). Any such notice
given pursuant to this Section 2.7(a) shall state that an Event of Default under
the Amended and Restated Indenture also constitutes an Event of Default under
this Amended and Restated Declaration.
(b) The Institutional Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 5.1(a) and 5.1(b) of the
Amended and Restated Indenture; or
(ii) any default as to which the Institutional Trustee
shall have received written notice or of which a
Responsible Officer of the Institutional Trustee
charged with the administration of the Amended and
Restated Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1. Name.
The Trust is named "CT Convertible Trust I" as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
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SECTION 3.2. Office.
The address of the principal office of the Trust is c/o Capital Trust,
Inc., 605 Third Avenue, 26th Floor, New York, NY 10016. On at least ten Business
Days written notice to the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.3. Purpose.
The exclusive purposes and functions of the Trust are (a) to issue the
Securities and to acquire the Debentures, and (b) except as otherwise limited
herein, to engage in only those other activities necessary, or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust.
SECTION 3.4. Authority.
(a) Subject to the limitations provided in this Amended and Restated
Declaration and to the specific duties of the Institutional Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Institutional Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Amended and Restated Declaration.
(b) Except as expressly set forth in this Amended and Restated
Declaration and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have power to act, any
power of the Regular Trustees may be exercised by, or with the consent of, any
one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6; and
(d) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of executing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5. Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Institutional Trustee Account or as otherwise provided in this Amended and
Restated Declaration, legal title to all assets of the Trust shall be vested in
the Trust. The Holders of Securities shall not have legal title to any part of
the assets of the Trust, but shall have an undivided beneficial interest in the
assets of the Trust.
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SECTION 3.6. Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority
to cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this Amended
and Restated Declaration; provided, however, that the Trust may issue no more
than one series of Convertible Preferred Securities and no more than one series
of Common Securities, and provided further, that there shall be no interests in
the Trust other than the Securities, and the issuance of Securities shall be
limited to a simultaneous issuance of both Convertible Preferred Securities and
Common Securities on the Issuance Date;
(b) in connection with the issuance of the Securities, at the direction
of the Sponsor, to:
(i) execute and enter into the Modification Agreement,
and other related agreements providing for the
issuance of the Securities; and
(ii) take all actions and perform such duties as may be
required of the Regular Trustees to open checking,
deposit or similar banking accounts as may be
necessary in connection with the issuance and sale of
the Securities;
(c) to acquire the Debentures; provided, however, that the Regular
Trustees shall cause legal title to the Debentures to be held of record in the
name of the Institutional Trustee for the benefit of the Holders of the
Convertible Preferred Securities and the Holders of Common Securities; provided,
further, that only Holders of outstanding Convertible Amounts of Securities
shall have an interest in outstanding Convertible Debentures and only Holders of
outstanding Non-Convertible Amounts of Securities shall have an interest in
outstanding Non- Convertible Debentures;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular Trustees
shall consult with the Sponsor and the Institutional Trustee before taking or
refraining from taking any Ministerial Action in relation to a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of ss. 316 (c) of the Trust Indenture Act, Distributions,
voting rights, redemptions and exchanges, and to issue relevant notices to the
Holders of Convertible Preferred Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants, and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations, if any,
under the Trust Indenture Act;
(j) to give the certificate required by ss. 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be executed by
any Regular Trustee;
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(k) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar, transfer
agent, Paying Agent and Conversion Agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election to defer payments
of interest on any of the Debentures by extending the interest payment period
under the Amended and Restated Indenture;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Convertible
Preferred Securities or to enable the Trust to effect the purposes for which the
Trust was created;
(p) to take any action, not inconsistent with this Amended and Restated
Declaration or with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under
the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax
purposes;
provided that such action does not adversely affect the interests of Holders or
vary the terms of the Convertible Preferred Securities;
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust;
(r) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to Section 11.2 herein; and
(s) to the extent provided in this Amended and Restated Declaration,
the winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the Certificate of Cancellation with the
Secretary of State of the State of Delaware.
The Regular Trustees must exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.3.
932747.9
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Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Sponsor.
The Trust appoints the Institutional Trustee as transfer agent and
registrar for the Convertible Preferred Securities.
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Amended and Restated Declaration. In particular
the Trust shall not and the Trustees (including the Institutional Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the
terms of this Amended and Restated Declaration and of
the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the
Securities in any way whatsoever except as permitted
by the terms of this Amended and Restated
Declaration;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust
other than the Securities; or
(vii) other than as provided in this Amended and Restated
Declaration or Annex I hereto, (A) direct the time,
method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default that is
not waivable under the Amended and Restated
Indenture, (C) exercise any right to rescind or annul
any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent
to any amendment, modification or termination of the
Amended and Restated Indenture or the Debentures
where such consent shall be required unless the Trust
shall have received an opinion of counsel to the
effect that such modification will not cause more
than an insubstantial risk that (x) the Trust will be
deemed an Investment Company required to be
registered under the Investment Company Act or (y)
the Trust will not be classified as a grantor trust
for United States federal income tax purposes.
SECTION 3.8. Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Institutional Trustee in trust for the benefit of the
Trust and the Holders of Securities; provided, however, that only Holders of
outstanding Convertible Amounts of Securities shall have an interest in
outstanding Convertible
932747.9
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Debentures and only Holders of outstanding Non-Convertible Amounts of Securities
shall have an interest in outstanding Non-Convertible Debentures. The right,
title and interest of the Institutional Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as Institutional
Trustee in accordance with Section 5.6. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee
Account") in the name of and under the exclusive
control of the Institutional Trustee on behalf of the
Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures
held by the Institutional Trustee, deposit such funds
into the Institutional Trustee Account and make
payments to the Holders of the Convertible Preferred
Securities and Holders of the Common Securities from
the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee
Account shall be held uninvested until disbursed in
accordance with this Amended and Restated
Declaration. The Institutional Trustee Account shall
be an account that is maintained with a banking
institution the rating on whose long-term unsecured
indebtedness is rated investment grade by a
"nationally recognized statistical rating
organization," as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of
the Convertible Preferred Securities and the Common
Securities to the extent the Debentures are redeemed
or mature;
(iii) engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution
of the Trust Property in accordance with the terms of
this Amended and Restated Declaration; and
(iv) to the extent provided for in this Amended and
Restated Declaration, take such ministerial actions
necessary in connection with the winding up of the
affairs of and liquidation of the Trust and the
preparation, execution and filing of the Certificate
of Cancellation with the Secretary of State of the
State of Delaware.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which arises
out of, or in connection with, an Event of Default of which a Responsible
Officer of the Institutional Trustee has actual knowledge, or the Institutional
Trustee's duties and obligations under this Amended and Restated Declaration or
the Trust Indenture Act; provided however, that if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on any of the Debentures on the
date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Convertible Preferred
Securities with an interest in such Debentures may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on such Debentures having a principal amount equal to the aggregate
Convertible Amount or Non-Convertible Amount through which such Holder holds
such interest (a "Direct Action") on or after the respective due date specified
in such Debentures and provided,
932747.9
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further, that if the Institutional Trustee fails to enforce its rights under
such Debentures, any such Holder may institute a legal proceeding against any
person to enforce the Institutional Trustee's rights under such Debentures. In
connection with such Direct Action, the rights of the Holders of the Common
Securities will be subrogated to the rights of such Holder of Convertible
Preferred Securities to the extent of any payment made by the Debenture Issuer
to such Holder of Convertible Preferred Securities in such Direct Action. Except
as provided in the preceding sentences, the Holders of Convertible Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
(f) The Institutional Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the
Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Institutional Trustee has been appointed
and has accepted that appointment in accordance with
Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Amended and Restated Indenture and, if an Event of Default actually known to a
Responsible Officer of the Institutional Trustee occurs and is continuing, the
Institutional Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons (each,
a "Paying Agent") to pay Distributions, redemption payments or Liquidation
Distributions on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with ss. 317(b) of the Trust Indenture Act. Any Paying
Agent may be removed by the Institutional Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9. Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Amended and Restated Declaration and no implied covenants shall be read
into this Amended and Restated Declaration against the Institutional Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Institutional
Trustee has actual knowledge, the Institutional Trustee shall exercise such of
the rights and powers vested in it by this Amended and Restated Declaration, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Amended and Restated Declaration shall be
construed to relieve the Institutional Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Institutional
Trustee shall be determined solely by the express provisions
of this Amended and Restated Declaration and the Institutional
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Amended and Restated Declaration, and no implied covenants or
obligations shall be read into this Amended and Restated
Declaration against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Institutional
Trustee and conforming to the requirements of this Amended and
Restated Declaration; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Amended and Restated Declaration;
(ii) the Institutional Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Institutional Trustee, unless it shall
be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional 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 not less than (x) a Majority in
liquidation amount of the Securities with respect to
actions that relate to all of the Securities; (y) a
Majority in liquidation amount of the Convertible
Amount of the Securities with respect to actions that
relate only to the Convertible Amount of the
Securities or the Convertible Debentures; or (z) a
Majority in liquidation amount of the Non-Convertible
Amount of the Securities with respect to actions that
relate only to the Non-Convertible Amount of the
Securities or the Non-Convertible Debentures,
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under
this Amended and Restated Declaration;
(iv) no provision of this Amended and Restated Declaration
shall require the Institutional Trustee to expend or
risk its own funds or otherwise incur personal
financial liability in the performance of any of its
duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for
believing that the repayment of such funds or
liability is not reasonably assured to it under the
terms of this Amended and Restated Declaration or
indemnity reasonably satisfactory to the
Institutional Trustee against such risk or liability
is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to
the custody, safe keeping and physical preservation
of the Debentures and the Institutional Trustee
Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals
with similar property for its own account, subject to
the protections and limitations on liability afforded
to the Institutional Trustee under this Amended and
Restated Declaration and the Trust Indenture Act;
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(vi) the Institutional Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments
levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree in writing with the Sponsor. Money
held by the Institutional Trustee need not be
segregated from other funds held by it except in
relation to the Institutional Trustee Account
maintained by the Institutional Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise
required by law; and
(viii) the Institutional Trustee shall not be responsible
for monitoring the compliance by the Regular Trustees
or the Sponsor with their respective duties under
this Amended and Restated Declaration, nor shall the
Institutional Trustee be liable for any default or
misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Institutional Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and
shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Amended and Restated
Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Amended and
Restated Declaration, the Institutional Trustee shall
deem it desirable that a matter be proved or
established before taking, suffering or omitting any
action hereunder, the Institutional Trustee (unless
other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request
and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Institutional Trustee shall have no duty to see
to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any filing under tax or securities laws)
or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel of
its selection or other experts and the advice or
opinion of such counsel and experts with respect to
legal matters or advice within the scope of such
experts' area of expertise 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 accordance with such advice or opinion.
Such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees.
The Institutional Trustee shall have the right at any
time to seek instructions concerning the
administration of this Amended and Restated
Declaration from any court of competent jurisdiction;
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(vi) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Amended and Restated Declaration
at the request or direction of any Holder, unless
such Holder shall have provided to the Institutional
Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against
the costs, expenses (including attorneys' fees and
expenses and the expenses of the Institutional
Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the
Institutional Trustee provided, that, nothing
contained in this Section 3.10(a)(vi) shall be taken
to (a) require the Holders of Convertible Preferred
Securities to offer such indemnity in the event such
Holders direct the Institutional Trustee to take any
action it is empowered to take under this Amended and
Restated Declaration following an Event of Default or
(b) relieve the Institutional Trustee, upon the
occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by
this Amended and Restated Declaration;
(vii) the Institutional 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, debenture, note, other evidence of
indebtedness or other paper or document, but the
Institutional Trustee, in its discretion, may make
such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
custodians, nominees or attorneys and the
Institutional Trustee shall not be responsible for
any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its
agents hereunder shall bind the Trust and the Holders
of the Securities, and the signature of the
Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action
and no third party shall be required to inquire as to
the authority of the Institutional Trustee to so act
or as to its compliance with any of the terms and
provisions of this Amended and Restated Declaration,
both of which shall be conclusively evidenced by the
Institutional Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Amended and
Restated Declaration the Institutional Trustee shall
deem it desirable to receive written instructions
with respect to enforcing any remedy or right or
taking any other action hereunder, the Institutional
Trustee (i) may request written instructions from the
Holders of the Securities which instructions may only
be given by the Holders of the same proportion in
liquidation amount of the Securities as would be
entitled to direct the Institutional Trustee under
the terms of the Securities in respect of such
remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and
(iii) shall be protected in conclusively relying on
or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Amended and Restated Declaration, the Institutional
Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of
this Amended and Restated Declaration; and
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(xii) the Institutional Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it
in good faith and reasonably believed by it to be
authorized or within the discretion or rights or
powers conferred upon it by this Amended and Restated
Declaration.
(b) No provision of this Amended and Restated Declaration shall be
deemed to impose any duty or obligation on the Institutional Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Institutional Trustee shall be construed to be a duty.
SECTION 3.11. Delaware Trustee.
Notwithstanding any other provision of this Amended and Restated
Declaration other than Section 5.2, the Delaware Trustee shall not be entitled
to exercise any powers, nor shall the Delaware Trustee have any of the duties
and responsibilities of the Regular Trustees, the Institutional Trustee or the
Trustees generally (except as may be required under the Business Trust Act)
described in this Amended and Restated Declaration. Except as set forth in
Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of ss. 3807 of the Business Trust Act.
SECTION 3.12. Execution of Documents.
Except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6.
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Amended and Restated Declaration and the
Securities shall be taken as the statements of the Sponsor, and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof. The Trustees make no representations as to the validity or
sufficiency of this Amended and Restated Declaration or the Securities.
SECTION 3.14. Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence until July 28, 2023.
SECTION 3.15. Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other body,
except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided that
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(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Convertible Preferred
Securities other securities having substantially the same
terms as the Convertible Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same
as the Convertible Preferred Securities rank with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee
of the Successor Entity that possesses the same
powers and duties as the Institutional Trustee as the
Holder of the Debentures;
(iii) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights,
preferences and privileges of the Holders of the
Securities (including any Successor Securities) in
any material respect (other than with respect to any
dilution of the Holders' interest in the Successor
Entity);
(iv) such Successor Entity has a purpose identical to that
of the Trust;
(v) such Successor Entity has assets identical to that of
the Trust;
(vi) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of
nationally recognized independent counsel to the
Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the
Successor Entity);
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an Investment
Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or such Successor
Entity) will continue to be classified as a grantor trust for
United States federal income tax purposes; and
(vii) the Sponsor guarantees the obligations of the
Successor Entity under the Successor Securities at
least to the extent provided by the Securities
Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it, if such consolidation, amalgamation, merger or replacement would
cause the Trust or the Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
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ARTICLE IV
SPONSOR
SECTION 4.1. Sponsor's Acquisition of Common Securities.
On the Issuance Date the Sponsor will acquire all of the Common
Securities issued by the Trust, in an amount at least equal to 3% of the capital
of the Trust, at the same time as the Convertible Preferred Securities are
issued.
SECTION 4.2. Responsibilities of the Sponsor.
In connection with the issuance of the Convertible Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Convertible Preferred Securities
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such States; and
(b) to agree to the terms of the Modification Agreement providing for
the issuance of the Convertible Preferred Securities.
ARTICLE V
TRUSTEES
SECTION 5.1. Number of Trustees.
The number of Trustees initially shall be four (4), and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of Trustees shall in
no event be less than two (2); provided further, that (i) one Trustee, in the
case of a natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity which has its principal
place of business in the State of Delaware (the "Delaware Trustee"); (ii) there
shall be at least one Trustee who is an employee or officer of, or is affiliated
with the Sponsor (a "Regular Trustee"); and (iii) one Trustee shall be the
Institutional Trustee, and such Trustee may also serve as Delaware Trustee if it
meets the applicable requirements.
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SECTION 5.2. Delaware Trustee.
If required by the Business Trust Act, one Trustee shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law;
provided that, if the Institutional Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements of applicable law,
then the Institutional Trustee shall also be the Delaware Trustee and Section
3.11 shall have no application.
The initial Delaware Trustee shall be: Wilmington Trust Company.
SECTION 5.3. Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State
or Territory thereof or of the District of Columbia,
or a corporation or Person permitted by the
Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually,
pursuant to law or to the requirements of the
supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), 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.
(b) If at any time the Institutional Trustee shall cease to be eligible
to so act under Section 5.3(a), the Institutional Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of ss. 310(b) of the Trust Indenture Act, the
Institutional Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in ss. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of ss. 310(b) of the Trust Indenture Act.
(d) The Convertible Preferred Securities Guarantee shall be deemed to
be specifically described in this Amended and Restated Declaration for purposes
of clause (i) of the first provision contained in ss. 310(b) of the Trust
Indenture Act.
(e) The initial Institutional Trustee shall be: Wilmington Trust
Company.
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SECTION 5.4. Certain Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5. Regular Trustees.
The initial Regular Trustees shall be:
John R. Klopp
Sheli Z. Rosenberg
(a) Except as expressly set forth in this Amended and Restated
Declaration and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have power to act, any
power of the Regular Trustees may be exercised by, or with the consent of, any
one such Regular Trustee.
(i) Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business
Trust Act or applicable law, any Regular Trustee is
authorized to execute on behalf of the Trust any
documents which the Regular Trustees have the power
and authority to cause the Trust to execute pursuant
to Section 3.6.
SECTION 5.6. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of
the Holders of the Common Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall
not be removed in accordance with Section 5.6(a)
until a Successor Institutional Trustee has been
appointed and has accepted such appointment by
written instrument executed by such Successor
Institutional Trustee and delivered to the Regular
Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with Section 5.6(a) until a
successor Trustee possessing the qualifications to
act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and
has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and
delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
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(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered
to the Trust, the Sponsor and the resigning Institutional
Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware
Trustee.
(d) the Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Institutional
Trustee as the case may be if the Institutional Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery of an instrument of resignation or removal,
the Institutional Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Institutional Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7. Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8. Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Amended and Restated Declaration.
SECTION 5.9. Meetings.
If there is more than one Regular trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand-delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or
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any committee thereof shall be hand-delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before a meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting by such Regular Trustee except where such Regular Trustee
attends a meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Amended and Restated Declaration,
any action of the Regular Trustees may be taken at a meeting by vote of a
majority of the Regular Trustees present (whether in person or by telephone) and
eligible to vote with respect to such matter, provided that a Quorum is present,
or without a meeting by the unanimous written consent of the Regular Trustees.
In the event there is only one Regular Trustee, any and all action of such
Regular Trustee shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.10. Delegation of Power.
A Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of executing any documents contemplated in Section 3.6.
The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
SECTION 5.11. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. Distributions.
Holders of Securities shall receive Distributions (as defined herein)
in accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Convertible Preferred Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a payment
of interest (including Compound Interest (as defined in the Amended and Restated
Indenture) and Additional Sums (as defined in the Amended and Restated
Indenture)), premium and/or principal on the Convertible Debentures held by the
Institutional Trustee (the amount of any such payment being a "Convertible
Debentures Payment Amount"), the Institutional Trustee shall and is directed, to
the extent funds are available for that purpose, to make a distribution (a
"Convertible Distribution") of the Convertible Debentures Payment Amount to
Holders with respect to the outstanding Convertible Amount of Securities held by
such Holders. If and to the extent that the Debenture Issuer makes a payment of
interest (including Compound
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Interest (as defined in the Amended and Restated Indenture) and Additional Sums
(as defined in the Amended and Restated Indenture)), premium and/or principal on
the Non-Convertible Debentures held by the Institutional Trustee (the amount of
any such payment being a "Non-Convertible Debentures Payment Amount"), the
Institutional Trustee shall and is directed, to the extent funds are available
for that purpose, to make a distribution (a "Non-Convertible Debentures
Distribution") of the Non-Convertible Debentures Payment Amount to Holders with
respect to the outstanding Non-Convertible Amount of Securities held by such
Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class
of convertible preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Convertible Preferred Securities") and one class of convertible common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Common Securities").
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Convertible Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Amended and
Restated Declaration, the Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder in accordance
with the terms of this Amended and Restated Declaration, shall be deemed to have
expressly assented and agreed to the terms of and shall be bound by this Amended
and Restated Declaration.
SECTION 7.2. Execution and Authentication.
(a) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. In case any Regular Trustee of the Trust who shall have signed
any of the Securities shall cease to be such Regular Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Securities, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Amended and Restated Declaration any such
person was not such a Regular Trustee.
(b) One Regular Trustee shall sign the Convertible Preferred Securities
for the Trust by manual or facsimile signature. Unless otherwise determined by
the Trust, such signature shall, in the case of Common Securities, be a manual
signature.
Convertible Preferred Securities shall not be valid until authenticated
by the manual signature of an authorized signatory of the Institutional Trustee.
The signature shall be conclusive evidence that the Convertible Preferred
Securities have been authenticated under this Amended and Restated Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Institutional Trustee shall authenticate the Convertible Preferred Securities
for original issue.
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The Institutional Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Convertible Preferred Securities. An
authenticating agent may authenticate Convertible Preferred Securities whenever
the Institutional Trustee may do so. Each reference in this Amended and Restated
Declaration to authentication by the Institutional Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Institutional Trustee to deal with the Company or an Affiliate.
SECTION 7.3. Form and Dating.
The Convertible Preferred Securities and the Institutional Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
and the Common Securities shall be substantially in the form of Exhibit A-2,
each of which is hereby incorporated in and expressly made a part of this
Amended and Restated Declaration. Certificates may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof. The Securities
may have letters, numbers, notations, other marks of identification or
designation or other changes or additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice and such legends or
endorsements required by law, stock exchange rule and agreements to which the
Trust is subject, if any (provided that any such notation, legend or endorsement
is in a form acceptable to the Trust). The Trust, at the direction of the
Sponsor, shall furnish any such legend not contained in Exhibit A-1 to the
Institutional Trustee in writing. Each Convertible Preferred Securities
Certificate shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in Exhibits A-1 and A-2 are part of the terms of this Amended and
Restated Declaration and, to the extent applicable, the Institutional Trustee
and the Sponsor, by their execution and delivery of this Amended and Restated
Declaration, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 7.4. Paying Agent.
The Trust shall maintain in the Borough of Manhattan, City of New York,
State of New York, an office or agency where Convertible Preferred Securities
may be presented for payment ("Paying Agent"). The Trust shall maintain an
office or agency where Securities may be presented for conversion of the
specified Convertible Amount thereof ("Conversion Agent"). The Trust may appoint
the Paying Agent and the Conversion Agent and may appoint one or more additional
paying agents and one or more additional conversion agents in such other
locations as it shall determine. The term "Paying Agent" includes any additional
paying agent and the term "Conversion Agent" includes any additional conversion
agent. The Trust may change any Paying Agent or Conversion Agent without prior
notice to any Holder. The Trust shall notify the Institutional Trustee in
writing of the name and address of any Agent not a party to this Amended and
Restated Declaration. If the Trust fails to appoint or maintain another entity
as Paying Agent or Conversion Agent, the Institutional Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent or Conversion
Agent. The Trust shall act as Paying Agent and Conversion Agent for the Common
Securities.
The Trust initially appoints Wilmington Trust Company, c/o Corporate
Trust Administration, 1100 North Market Street, Wilmington, Delaware 19810-0001,
as Paying Agent and Conversion Agent for the Convertible Preferred Securities.
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ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Sponsor or the Holder of
the Common Securities;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor or the
Holder of the Common Securities; the filing of a
certificate of cancellation with respect to the Trust
after having obtained the consent of at least a
Majority in liquidation amount of the Securities
voting together as a single class to file such
certificate of cancellation; or the revocation of the
Sponsor's charter or the charter of the Holder of the
Common Securities and the expiration of 90 days after
the date of revocation without a reinstatement
thereof;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor, the Trust or the Holder of the Common
Securities;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in
accordance with the terms of the Securities;
(v) upon the occurrence and continuation of a Special
Event pursuant to which the Trust shall have been
dissolved in accordance with the terms of the
Securities and all of the Debentures held by the
Institutional Trustee shall have been distributed to
the Holders of Securities in exchange for all of the
Securities;
(vi) upon the written direction to the Institutional
Trustee from the Sponsor at any time to terminate the
Trust and, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law,
the distribution of Debentures to Holders in exchange
for the Securities, subject to the Regular Trustees'
receipt of an opinion of nationally recognized
independent counsel experienced in such matters to
the effect that the holders of the Convertible
Preferred Securities will not recognize any income,
gain or loss for United States federal income tax
purposes as a result of the dissolution of the Trust
and such distribution to Holders;
(vii) upon the distribution of Class A Common Stock to all
Holders of Convertible Preferred Securities upon
conversion of the Convertible Amount of all
outstanding Convertible Preferred Securities;
provided that the Non-Convertible Amount of all
outstanding Convertible Preferred Securities has been
called for redemption and all amounts due in respect
of such redemption of the Non-Convertible Amount of
such Securities shall have been paid to the Holders
of such Securities in accordance with the terms
thereof;
(viii) the expiration of the term of the Trust on July 28,
2023; or
(ix) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the
Sponsor.
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(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Sections 3.9 and 3.10 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities.
(a) Securities may only be transferred in accordance with the terms and
conditions set forth in this Amended and Restated Declaration and in the terms
of the Securities. Any transfer or purported transfer of any Securities not made
in accordance with this Amended and Restated Declaration shall be null and void.
(b) Subject to this Article IX, Convertible Preferred Securities shall
be transferable in whole or in part.
(c) Subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided, that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to
register under the Investment Company Act or the
transferee would become an Investment Company
required to register under the Investment Company
Act.
(d) All Securities that bear or are required to bear the legend set
forth in this Section 9.1(d) ("Restricted Securities") shall be subject to the
restrictions on transfer provided in the legend set forth in this Section
9.1(d), unless such restrictions on transfer shall be waived by the written
consent of the Regular Trustees, and the Holder of Restricted Securities, by
such securityholder's acceptance thereof, agrees to be bound by such
restrictions on transfer. As used in this Section 9.1(d) and in Section 9.1(e),
the term "transfer" encompasses any sale, pledge, transfer or other disposition
of any Restricted Securities.
Prior to the Transfer Restriction Termination Date, any certificate
evidencing Securities shall bear a legend in substantially the following form,
unless otherwise agreed by the Regular Trustees (with written notice thereof to
the Institutional Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING
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PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE SHARES OF CLASS A COMMON STOCK
ISSUABLE UPON CONVERSION OR EXCHANGE OF THE CONVERTIBLE AMOUNT OF THIS SECURITY
("COMMON STOCK") EXCEPT (A) TO CAPITAL TRUST, INC. (THE "COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF THIS
CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, THE TRANSFER AGENT FOR THE SHARES
OF COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR TRANSFER
AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF THIS
CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR CT CONVERTIBLE TRUST I ("THE TRUST") MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT). IF THIS CERTIFICATE DOES NOT EVIDENCE SHARES OF COMMON STOCK AND IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE
MAY BE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY
OR THE TRUST MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE SECURITY
EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN
THE AMENDED AND RESTATED DECLARATION REFERRED TO HEREIN.
Following the Transfer Restriction Termination Date, any Securities or
securities issued in exchange for the Convertible Amount thereof or in
substitution therefor (other than (i) Securities acquired by the Company or any
Affiliate and (ii) shares of Class A Common Stock issued upon the conversion or
exchange of Securities described in clause (i) above) may upon surrender of such
securities for exchange to any Regular Trustee on behalf of the Trust in
accordance with the provisions of Section 9.2, be exchanged for new securities,
of like tenor, aggregate liquidation amount, Convertible Amount and
Non-Convertible Amount (the ratio of any
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Convertible Amount to any Non-Convertible Amount to be the same in any
Certificate issued under this sentence as in the corresponding Certificate
surrendered under this sentence), which shall not bear the restrictive legend
required by this Section 9.1(d).
Any Convertible Preferred Securities or shares of Class A Common Stock
issued upon the conversion or exchange of the Convertible Amount of Convertible
Preferred Securities that, prior to the Transfer Restriction Termination Date,
are purchased or owned by the Company or any Affiliate thereof may not be resold
by the Company or such Affiliate unless registered under the Securities Act or
resold pursuant to an exemption from the registration requirements of the
Securities Act in a transaction which results in such Convertible Preferred
Securities or shares of Class A Common Stock, as the case may be, no longer
being "restricted securities" (as defined under Rule 144).
(e) The Convertible Preferred Securities shall be subject to the
restrictions on transfer provided in this Section 9.1(e).
(i) If a holder of Convertible Preferred Securities (the
"Offeror") desires to sell, assign, transfer, encumber, or otherwise
dispose of any of his Convertible Preferred Securities, he shall give
written notice to Capital Trust of his desire to do so, of the total
Convertible Amount and the total Non- Convertible Amount of the
Convertible Preferred Securities to be sold and of the price and other
terms under which he proposes to dispose of his Convertible Preferred
Securities (the "Sales Notice"), which Sales Notice shall constitute an
offer on the part of the Offeror to sell to Capital Trust any such
Convertible Preferred Securities upon the terms and conditions set
forth in such notice.
(ii) Unless, within ten (10) days after the giving of the
Sales Notice by the Offeror pursuant to subparagraph (i) of this
Section 9.1(e), Capital Trust shall give written notice to the Offeror
that Capital Trust irrevocably commits to purchase the Convertible
Preferred Securities subject to the Sale Notice at the price and under
the terms specified in the Sales Notice given by the Offeror, Capital
Trust shall be deemed to have rejected the offer of the Offeror to sell
the Convertible Preferred Securities subject to the Sale Notice and the
Offeror shall be free without restriction under this Section 9.1(e) to
sell the Convertible Preferred Securities subject to the Sales Notice
to any other Person, provided however, if the price is less than 90% of
the price contained in the Sales Notice and the other terms are more
favorable than those contained in the Sales Notice, the Offeror shall
again offer to sell the Convertible Preferred Securities in accordance
with the provisions of subparagraph (i) of this Section 9.1(e) before
it may complete any such sale and provided further, that the
Convertible Preferred Securities subject to the Sales Notice shall
again be subject to the provisions of subparagraph (i) of this Section
9.1(e) if within ninety (90) days after the giving of the Sales Notice,
the Offeror shall not have completed the disposition of such
Convertible Preferred Securities.
(iii) If Capital Trust irrevocably commits to purchase the
Convertible Preferred Securities as contemplated by subparagraph (ii)
of this Section 9.1(e), the closing of such purchase shall take place
at the principal place of business of Capital Trust at 10:00 A.M. (New
York City time) on the third (3rd) day following the expiration of the
ten (10) day period referred to subparagraph (ii) of this Section
9.1(e), or if such day is not a Business Day, then the next day that is
a Business Day.
The provisions of this Section 9.1(e) shall not apply to one or more
transfers of Convertible Preferred Securities (i) by the trustees of GM Trust to
one or more successor trustees or successor trusts for the benefit of the
employees of General Motors Corporation and its Affiliates, (ii) by VRLP to
Vornado Operating Inc. or any Affiliate or subsidiary thereof or to any entity
in which VRLP holds, directly or indirectly, an economic interest of greater
than 50% or (iii) by EOPLP to any Equity Office Properties Trust sponsored
"Paper Clip" enterprise or any Affiliate or subsidiary thereof or to any entity
in which EOPLP holds, directly or indirectly, an economic interest of greater
than 50%.
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(f) No Securities may be transferred unless the Certificate
representing such Securities immediately after transfer shows a Convertible
Amount of such Securities and a Non-Convertible Amount of such Securities in the
same ratio to each other as shown on the Certificate representing such
Securities immediately before transfer.
SECTION 9.2. Transfer of Certificates.
The Regular Trustees shall provide for the registration of Certificates
and of transfers of Certificates, which will be effected without charge, but
only upon payment in respect of any tax or other government charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Each Certificate
issued under this section shall show a Convertible Amount of the Securities
represented and a Non-Convertible Amount of the Securities represented in the
same ratio to each other as shown on the corresponding Certificate surrendered
under this section. Every Certificate surrendered for registration of transfer
shall be accompanied by a written instrument of transfer in form satisfactory to
the Regular Trustees duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of a Certificate shall
be entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by this
Amended and Restated Declaration.
SECTION 9.3. Deemed Holders of Securities.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4. Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee or the
Regular Trustees such security or indemnity as may be required by them to keep
each of them harmless;
then:
in the absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, the Institutional Trustee or any Regular Trustee on
behalf of the Trust shall execute and deliver, in exchange for, or in lieu of,
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like denomination. In connection with the issuance of any new Certificate under
this Section 9.4, the Institutional Trustee or the Regular Trustees may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
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ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1. Liability.
(a) Except as expressly set forth in this Amended and Restated
Declaration, the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of
the Holders of the Securities which shall be made
solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust
or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than amounts due on the Securities
subject to the Preferred Guarantee) to the extent not satisfied out of the
Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders of
the Convertible Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Amended and Restated Declaration or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Amended and Restated Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Amended and Restated Declaration. The provisions of this Amended and Restated
Declaration, to the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity (other than the duties
imposed on the Institutional Trustee under the
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Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Amended and Restated Declaration or any
other agreement contemplated herein or therein
provides that an Indemnified Person shall act in a
manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of
each party (including its own interest) to such
conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any
customary or accepted industry practices, and any
applicable generally accepted accounting practices or
principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so
made, taken or provided by the Indemnified Person
shall not constitute a breach of this Amended and
Restated Declaration or any other agreement
contemplated herein or of any duty or obligation of
the Indemnified Person at law or in equity or
otherwise.
(c) Whenever in this Amended and Restated Declaration an Indemnified
Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled
to consider such interests and factors as it desires,
including its own interests, and shall have no duty
or obligation to give any consideration to any
interest of or factors affecting the Trust or any
other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any
other or different standard imposed by this Amended
and Restated Declaration or by applicable law.
SECTION 10.4. Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified
Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action
by or in the right of the Trust) by reason of the
fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did
not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable
cause to believe that his conduct was unlawful.
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(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified
Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to
procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person
against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best
interests of the Trust and except that no such
indemnification shall be made in respect of any
claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent
that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall
determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court
shall deem proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including
dismissal of an action without prejudice or the
settlement of an action without admission of
liability) in defense of any action, suit or
proceeding referred to in paragraphs (i) and (ii) of
this Section 10.4(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to
the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court)
shall be made by the Debenture Issuer only as
authorized in the specific case upon a determination
that indemnification of the Company Indemnified
Person is proper in the circumstances because he has
met the applicable standard of conduct set forth in
paragraphs (i) or (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote
of a quorum consisting of such Regular Trustees who
were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in
a written opinion, or (3) by the Holder of Common
Securities.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil,
criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to
be indemnified by the Debenture Issuer as authorized
in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture
Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote
of a quorum of disinterested Regular Trustees, (ii)
if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in
a written opinion or (iii) by the Holder of Common
Securities, that, based upon the facts known to the
Regular Trustees, counsel or the Holder of Common
Securities at the time such determination is made,
such Company Indemnified Person acted in bad faith or
in a manner that such person did not believe to be in
or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that
such Company Indemnified Person believed or had
reasonable
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cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where
the Regular Trustees, independent legal counsel or
Holder of Common Securities reasonably determine that
such person deliberately breached his duty to the
Trust or its Holders of Common Securities or
Convertible Preferred Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
paragraphs of this Section 10.4(a) shall not be
deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses
may be entitled under any agreement, vote of
stockholders or disinterested directors of the
Debenture Issuer or Holders of Convertible Preferred
Securities of the Trust or otherwise, both as to
action in his official capacity and as to action in
another capacity while holding such office. All
rights to indemnification under this Section 10.4(a)
shall be deemed to be provided by a contract between
the Debenture Issuer and each Company Indemnified
Person who serves in such capacity at any time while
this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect
any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or
was a Company Indemnified Person against any
liability asserted against him and incurred by him in
any such capacity, or arising out of his status as
such, whether or not the Debenture Issuer would have
the power to indemnify him against such liability
under the provisions of this Section 10.4(a)
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who
is or was a director, trustee, officer or employee of
such constituent entity, or is or was serving at the
request of such constituent entity as a director,
trustee, officer, employee or agent of another
entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to
the resulting or surviving entity as he would have
with respect to such constituent entity if its
separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section
10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who
has ceased to be a Company Indemnified Person and
shall inure to the benefit of the heirs, executors
and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i) Institutional
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Institutional
Trustee and the Delaware Trustee, and (iv) any officers, directors,
stockholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration or
the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The provisions of this Section 10.4(b) shall
survive the satisfaction and discharge of this Amended and Restated Declaration
or the resignation or removal of the Institutional Trustee or the Delaware
Trustee, as the case may be.
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SECTION 10.5. Outside Business.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Amended and Restated
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee, or the Institutional Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1. Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the same as the
fiscal year of the Sponsor.
SECTION 11.2. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books, records and supporting
documents, which shall reflect in detail each transaction of the Trust. The
books of account shall be maintained on the accrual method of accounting in
compliance with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for United States federal
income tax purposes. The books of account and the records of the Trust shall be
audited by and reported upon as of the end of each Fiscal Year of the Trust by a
firm of independent certified public accountants selected by the Regular
Trustees.
(b) The Sponsor shall cause to be prepared and delivered to each of the
Holders of Securities, within 90 days after the end of each Fiscal Year of the
Sponsor, annual financial statements of the Sponsor, including a balance sheet
of the Sponsor as of the end of such Fiscal Year, and the related statements of
income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders of Securities, any annual United States federal income
tax information statement required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall use reasonable best
efforts to deliver all such statements within 90 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and timely
filed with the appropriate taxing authority an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
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SECTION 11.3. Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional Trustee Account.
SECTION 11.4. Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding. Furthermore, if withholding is imposed on
payments of interest on the Debentures, to the extent such withholding is
attributable to ownership by a specific Holder of Convertible Preferred
Securities, the amount withheld shall be deemed a distribution in the amount of
the withholding to such specific Holder.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments.
Except as otherwise provided in this Amended and Restated Declaration
or by any applicable terms of the Securities,
(a) this Amended and Restated Declaration may only be amended by a
written instrument approved and executed by the Regular Trustees (or, if there
are more than two Regular Trustees, a majority of the Regular Trustees) and:
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional
Trustee, also by the Institutional Trustee; and
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee,
also by the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an
Officers' Certificate from each of the Trust and the
Sponsor that such
932747.9
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amendment is permitted by, and conforms to, the terms
of this Amended and Restated Declaration (including
the terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or
immunities of the Institutional Trustee, the
Institutional Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Amended and Restated
Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Amended and Restated
Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be
to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers
of the Institutional Trustee; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(c) at such time and after the Trust has issued any securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities if such amendment will
affect the Holders of Convertible Amounts of Securities and the Holders of
Non-Convertible Amounts of Securities; provided, however, that if such amendment
relates only to the Convertible Amount of the Securities or will disadvantage
the Holders of Convertible Amounts of Securities vis-a- vis the Holders of
Non-Convertible Amounts of Securities, then this Amended and Restated
Declaration may only be amended if the Holders of a Majority in liquidation
amount of the Convertible Amount of Securities consent to such amendment;
provided, further, that if such amendment relates only to the Non-Convertible
Amount of the Securities or will disadvantage the Holders of Non-Convertible
Amounts of Securities vis-a-vis the Holders of Convertible Amounts of
Securities, then this Amended and Restated Declaration may only be amended if
the Holders of a Majority in liquidation amount of the Non-Convertible Amount of
Securities consent to such amendment;
(e) Article IV shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under Article V
to increase or decrease the number of, and appoint and remove, Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Amended and Restated
Declaration may be amended from time to time by the Holders of a Majority in
liquidation amount of the Common Securities and the Institutional Trustee,
without the consent of the Holders of the Convertible Preferred Securities to:
932747.9
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(i) cure any ambiguity, correct or supplement any
provision in this Amended and Restated Declaration
that may be inconsistent with any other provision, or
to make any other provisions with respect to matters
or questions arising under this Amended and Restated
Declaration, which shall not be inconsistent with the
other provisions of this Amended and Restated
Declaration; or
(ii) to modify, eliminate or add to any provisions of this
Amended and Restated Declaration to such extent as
shall be necessary to ensure that the Trust will be
classified for United States federal income tax
purposes as a grantor trust at all times that any
Securities are outstanding or to ensure that the
Trust will not be required to register as an
investment company under the Investment Company Act;
provided, however, such action shall not adversely affect in any material
respect the interests of any Holder of Securities;
(h) this Amended and Restated Declaration may be amended by the Holders
of a Majority in liquidation amount of the Common Securities and the
Institutional Trustee if:
(i) the Holders of a Majority in liquidation amount of
the Convertible Preferred Securities consent to such
amendment if such amendment will affect the Holders
of Convertible Amounts of Convertible Preferred
Securities and the Holders of Non-Convertible Amounts
of Convertible Preferred Securities; provided,
however, that if such amendment relates only to the
Convertible Amount of the Securities or will
disadvantage the Holders of Convertible Amounts of
Convertible Preferred Securities vis-a-vis the
Holders of Non-Convertible Amounts of Convertible
Preferred Securities, then this Amended and Restated
Declaration may only be amended if the Holders of a
Majority in liquidation amount of the Convertible
Amount of Convertible Preferred Securities consent to
such amendment; provided, further, that if such
amendment relates only to the Non-Convertible Amount
of the Securities or will disadvantage the Holders of
Non-Convertible Amounts of Convertible Preferred
Securities vis-a-vis the Holders of Convertible
Amounts of Convertible Preferred Securities, then
this Amended and Restated Declaration may only be
amended if the Holders of a Majority in liquidation
amount of the Non-Convertible Amount of Convertible
Preferred Securities consent to such amendment; and
(ii) the Regular Trustees have received an opinion of
nationally recognized independent counsel experienced
in such matters to the effect that such amendment or
the exercise of any power granted to the Regular
Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for
United States federal income tax purposes or the
Trust's exemption from status as an "investment
company" under the Investment Company Act,
provided, that without the consent of each Holder of Securities, this Amended
and Restated Declaration may not be amended to:
(i) change the amount or timing of any distribution on
the Securities or otherwise adversely affect the
amount of any distribution required to be made in
respect of the Securities as of a specified date;
932747.9
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(ii) restrict the right of a Holder of Securities to
institute suit for the enforcement of any such
payment on or after such date;
(iii) change or add a provision that shall result in the
realization of unrelated business income for the
Holders of Securities; or
(iv) modify the relative rights, privileges, restrictions,
preferences, benefits and other terms and provisions
of the Convertible Amounts as they relate to the
Non-Convertible Amounts and vice versa.
(i) Any amendments of this Amended and Restated Declaration shall
become effective when notice thereof is given to Holders of Securities.
SECTION 12.2. Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Amended and Restated Declaration,
the terms of the Securities or the rules of any stock exchange on which the
Convertible Preferred Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 25% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the Regular Trustees
one or more calls in a writing stating that the signing Holders of Securities
wish to call a meeting and indicating the general or specific purpose for which
the meeting is to be called. Any Holders of Securities calling a meeting shall
specify in writing the Certificates held by the Holders of Securities exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat
at least 7 days and not more than 60 days before the
date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or
required under this Amended and Restated Declaration
or the rules of any stock exchange on which the
Convertible Preferred Securities are listed or
admitted for trading, such vote, consent or approval
may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting
of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the
action so taken is signed by the Holders of
Securities owning not less than the minimum amount of
Securities in liquidation amount that would be
necessary to authorize or take such action at a
meeting at which all Holders of Securities having a
right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting
shall be given to the Holders of Securities entitled
to vote who have not consented in writing. The
Regular Trustees may specify that any written ballot
submitted to Holders of Securities for the purpose of
taking any action without a meeting shall be returned
to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of Securities may authorize any Person to
act for it by proxy on all matters in which a Holder
of Securities is entitled to participate, including
waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid
after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy.
932747.9
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Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State
of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the
Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Amended and
Restated Declaration, the terms of the Securities,
the Trust Indenture Act or the listing rules of any
stock exchange on which the Convertible Preferred
Securities are then listed or trading otherwise
provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions
relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice,
action by consent without a meeting, the
establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF SPONSOR, INSTITUTIONAL TRUSTEE AND
DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Amended and
Restated Declaration, and each Successor Institutional Trustee represents and
warrants, as applicable, to the Trust and the Sponsor at the time of the
Successor Institutional Trustee's acceptance of its appointment as Institutional
Trustee that:
(a) the Institutional Trustee is a national banking association with
trust powers, duly organized, validly existing and in good standing, with trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Amended and Restated Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of the Amended and Restated Declaration has been duly authorized by all
necessary corporate action on the part of the Institutional Trustee. The Amended
and Restated Declaration has been duly executed and delivered by the
Institutional Trustee, and it constitutes a legal, valid and binding obligation
of the Institutional Trustee, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency,
and other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Amended and Restated
Declaration by the Institutional Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Institutional Trustee; and
932747.9
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(d) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution,
delivery or performance by the Institutional Trustee of the Amended and Restated
Declaration.
SECTION 13.2. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Amended and
Restated Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Delaware
Trustee's acceptance of its appointment as Delaware Trustee that:
(a) the Delaware Trustee is a Delaware corporation, duly organized,
validly existing and in good standing, with corporate power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Amended and Restated Declaration;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Amended and Restated Declaration. The
Amended and Restated Declaration under Delaware law constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) no consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Amended and
Restated Declaration; and
(d) the Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware.
SECTION 13.3. Representations, Warranties and Covenants of Sponsor.
(a) The Sponsor represents and Warrants to the Trustee that:
(i) the Sponsor is a corporation duly incorporated and
validly existing under and by virtue of the laws of
the State of Maryland and is in good standing with
the State Department of Assessments and Taxation of
Maryland, with the requisite corporate power to
execute and deliver the Amended and Restated
Declaration, and to carry out the terms and
conditions thereof applicable to it; and
(ii) the execution, delivery and performance by the
Sponsor of the Amended and Restated Declaration have
been duly authorized by all necessary corporate
action on the part of the Sponsor. The Amended and
Restated Declaration has been duly executed and
delivered by the Sponsor, and it constitutes a legal,
valid and binding obligation of the Sponsor,
enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general
principles of equity and the discretion of the court
(regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or
at law).
(b) For so long as any Convertible Preferred Securities are
outstanding, in order to render the Convertible Preferred Securities eligible
for resale pursuant to Rule 144A, while any of the Convertible Preferred
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Securities are "restricted securities" (as such term is defined in Rule
144(a)(3) under the Securities Act), the Sponsor will make available, upon
request, to any Holder or any prospective purchasers of the Convertible
Preferred Securities the information specified in paragraph (d)(4) of Rule 144A,
unless the Sponsor is then subject to Section 13 or 15(d) of the Exchange Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Notices.
All notices provided for in this Amended and Restated Declaration shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities):
CT Convertible Trust I
c/o Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, NY 10016
Attention: Chief Financial Officer
(b) if given to the initial Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
Wilmington Trust Company
1100 North Market Street
9th Floor
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) if given to the initial Institutional Trustee, at its Corporate
Trust Office's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
Wilmington Trust Company
1100 North Market Street
9th Floor
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, NY 10016
Attention: Chief Financial Officer
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
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All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 14.2. Governing Law.
This Amended and Restated Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
SECTION 14.3. Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Amended and Restated Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4. Headings.
Headings contained in this Amended and Restated Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Amended and Restated Declaration or any provision hereof.
SECTION 14.5. Successors and Assigns.
Whenever in this Amended and Restated Declaration any of the parties
hereto is named or referred to, the successors and assigns of such party shall
be deemed to be included, and all covenants and agreements in this Amended and
Restated Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 14.6. Partial Enforceability.
If any provision of this Amended and Restated Declaration, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Amended and Restated Declaration, or the
application of such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
SECTION 14.7. Counterparts.
This Amended and Restated Declaration may contain more than one
counterpart of the signature page and this Amended and Restated Declaration may
be executed by the affixing of the signature of each of the Trustees to one of
such counterpart signature pages. All of such counterpart signature pages shall
be read as though one, and they shall have the same force and effect as though
all of the signers had signed a single signature page.
SECTION 14.8. Accrued Distributions.
On June 30, 2000, the Trust, upon receipt from the Sponsor of interest
accrued on the Original Debentures from April 1, 2000 to but not including the
date hereof, will pay to the Holders the distributions accrued on the Original
Securities from April 1, 2000 to but not including the date hereof.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ John R. Klopp
John R. Klopp, as Regular Trustee
Solely as trustee and not in his individual capacity
/s/ Sheli Z. Rosenberg
Sheli Z. Rosenberg, as Regular Trustee
Solely as trustee and not in her individual capacity
WILMINGTON TRUST COMPANY, as
Delaware Trustee
By: /s/ Roseline K. Maney
Name: Roseline K. Maney
Title: Senior Financial Services Officer
WILMINGTON TRUST COMPANY,
as Institutional Trustee
By: /s/ Roseline K. Maney
Name: Roseline K. Maney
Title: Senior Financial Services Officer
CAPITAL TRUST, INC., as Sponsor
By:/s/ John R. Klopp
Name: John R. Klopp
Title: Chief Executive Officer
932747.9
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<PAGE>
ANNEX I
TERMS OF
VARIABLE STEP UP CONVERTIBLE TRUST PREFERRED SECURITIES
VARIABLE STEP UP CONVERTIBLE TRUST COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of May 10, 2000 (as amended from time to time, the "Amended and
Restated Declaration"), of CT Convertible Trust I, the designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Convertible Preferred Securities and the Common Securities are set out below
(each capitalized term used but not defined herein has the meaning set forth in
the Amended and Restated Declaration):
1. Designation; Liquidation Amount; Convertible Amount and
Non-Convertible Amount; Notation on Certificates.
(a) Convertible Preferred Securities. Convertible Preferred Securities
of the Trust with an aggregate liquidation amount with respect to the assets of
the Trust of One Hundred Fifty Million Dollars ($150,000,000) are hereby
designated for the purposes of identification only as "Variable Step Up
Convertible Trust Preferred Securities" (the "Convertible Preferred
Securities"). The Convertible Preferred Securities Certificates evidencing the
Convertible Preferred Securities shall be substantially in the form of Exhibit
A-1 to the Amended and Restated Declaration, with such letters, numbers,
notations, other means of identification or designation or other changes or
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice and such legends or endorsements required by law, stock
exchange rule and agreements to which the Trust is subject, if any (provided
that any such notation, legend or endorsement is in a form acceptable to the
Trust).
(b) Common Securities. Common Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of Four Million Six
Hundred Fifty Thousand Dollars ($4,650,000) are hereby designated for the
purposes of identification only as "Variable Step Up Convertible Trust Common
Securities" (the "Common Securities"). The Common Securities Certificates
evidencing the Common Securities shall be in the form of Exhibit A-2 to the
Amended and Restated Declaration, with such letters, numbers, notations, other
means of identification or designation or other changes or additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice and
such legends or endorsements required by law, stock exchange rule and agreements
to which the Trust is subject, if any (provided that any such notation, legend
or endorsement is in a form acceptable to the Trust).
(c) Liquidation Amount; Convertible Amount and Non-Convertible Amount.
The Convertible Preferred Securities issued to the initial Holders thereof shall
have an initial aggregate liquidation amount of $150,000,000 ($50,000,000 per
initial Holder), of which amount $89,742,000 ($29,914,000 per initial Holder) in
liquidation amount shall be the Convertible Amount and $60,258,000 ($20,086,000
per initial Holder) in liquidation amount shall be the Non-Convertible Amount.
The Common Securities issued to the Sponsor shall have an initial aggregate
liquidation amount of $4,650,000, of which amount $2,782,000 in liquidation
amount shall be the Convertible Amount and $1,868,000 in liquidation amount
shall be the Non-Convertible Amount.
(d) Notation on Certificates. Denoted upon the Certificates shall be
the outstanding liquidation amount of the Securities evidenced thereby, such
liquidation amount to be divided into the outstanding Convertible Amount and the
outstanding Non-Convertible Amount thereof. Upon any redemption pursuant to
Section 4 hereof or any conversion pursuant to Section 5 hereof, a new
Certificate shall be issued to replace the Certificate representing the
Securities so redeemed or converted, unless no Convertible Amount and no
Non-Convertible Amount of such Securities remains outstanding after such
redemption or conversion. Such new Certificate shall denote an outstanding
liquidation amount (and Convertible Amount and Non-Convertible Amount) as
reduced to reflect any such redemption or conversion.
I-1
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2. Distributions.
(a) Distributions payable on the Securities will be fixed as follows:
(i) With respect to the Convertible Amount of the Securities,
distributions will be fixed at a rate per annum of 8.25% of the
Convertible Amount of the Securities from and including May 10, 2000 to
and including March 31, 2002, such rate per annum automatically
increasing on April 1, 2002 to the greater (as determined as of the
last Business Day of each calendar quarter) of the following:
(A) 10.00% per annum, such rate per annum
automatically increasing by an additional
.75% per annum (any such increase shall be
cumulative with any such prior increase(s))
on October 1, 2004 and again on each
subsequent October 1, and
(B) the Common Rate (as defined below)
(the rate in effect at any time is hereinafter referred to as the
"Convertible Coupon Rate"), and the Convertible Coupon Rate being the
rate of interest payable on the Convertible Debentures to be held by
the Institutional Trustee. Distributions in arrears with respect to the
Convertible Amount of the Securities for more than one quarter will
entitle Holders of such Convertible Amounts to Distributions on such
Distributions, calculated on the basis of an interest factor compounded
quarterly at the Convertible Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such
Distributions on Distributions unless otherwise stated. A Distribution
with respect to the Convertible Amount is payable only to the extent
that payments are made in respect of the Convertible Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. In addition, payments on the Convertible
Debentures to the Institutional Trustee shall only be available for
Distributions in respect of the Convertible Amount. The amount of
Distributions payable for any period will be computed for any full
quarterly period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly period for
which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed per 30-day month.
The "Common Rate" shall be calculated for each calendar
quarter during which the Sponsor pays any Common Dividend, and the
Common Rate for each such quarter means the product, expressed as a
percentage rate per annum, of (a) the fraction, the numerator of which
is the aggregate dollar amount of Common Dividend paid on one share of
Class A Common Stock during such quarter and the denominator of which
is $7.00 (subject to adjustment in proportion to each adjustment to the
Conversion Price triggered by events occurring prior to such quarter),
multiplied by (b) four. "Common Dividend" means any cash dividend or
distribution payable on the Class A Common Stock of the Sponsor.
(ii) With respect to the Non-Convertible Amount of the
Securities, distributions will be fixed at a rate per annum of 13.00%
of the Non-Convertible Amount of the Securities from and including May
10, 2000 to and including September 30, 2004, such rate per annum
automatically increasing by an additional .75% per annum (any such
increase shall be cumulative with any such prior increase(s)) on
October 1, 2004 and again on each subsequent October 1 (such rate in
effect at any time is hereinafter referred to as the "Non-Convertible
Coupon Rate"), and such rate being the rate of interest payable on the
Non-Convertible Debentures to be held by the Institutional Trustee.
Distributions in arrears with respect to the Non-Convertible Amount of
the Securities for more than one quarter will entitle Holders of such
Non-Convertible Amounts to Distributions on such Distributions,
calculated on the basis of an interest factor compounded quarterly at
the Non-Convertible Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such
Distributions on Distributions unless otherwise stated. A Distribution
with respect to the Non-Convertible Amount is payable only to the
extent that payments are made in respect of the Non-Convertible
Debentures held by the Institutional
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Trustee and to the extent the Institutional Trustee has funds available
therefor. In addition, payments on the Non-Convertible Debentures to
the Institutional Trustee shall only be available for Distributions in
respect of the Non-Convertible Amount. The amount of Distributions
payable for any period will be computed for any full quarterly period
on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly period for which Distributions are
computed, Distributions will be computed on the basis of the actual
number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will accrue
from May 10, 2000 and will be payable quarterly in arrears, on March 31, June
30, September 30 and December 31 of each year (each a "Distribution Payment
Date"), commencing on June 30, 2000, except as otherwise described below. So
long as the Debenture Issuer shall not be in default in the payment of interest
on the Debentures, and subject to the condition that the prescribed
certification in Section 11.1 of the Amended and Restated Indenture regarding
liquidity is made at the commencement of the Extension Period and at the
beginning of each subsequent quarter of such Extension Period, the Debenture
Issuer has the right under the Amended and Restated Indenture to defer payments
of interest on all of the Debentures by extending the interest payment period
from time to time on the Debentures for a period not exceeding 20 consecutive
quarters (each an "Extension Period"), during which Extension Period no interest
shall be due and payable on the Debentures, provided that no Extension Period
shall last beyond the date of maturity or any redemption date of the Debentures.
As a consequence of any such deferral with respect to the Convertible
Debentures, Distributions with respect to the Convertible Amount of Securities
will also be deferred. As a consequence of any such deferral with respect to the
Non-Convertible Debentures, Distributions with respect to the Non-Convertible
Amount of Securities will also be deferred. Despite any such deferral of
Distributions, quarterly Distributions will continue to accrue with
Distributions on such Distributions, calculated on the basis of an interest
factor (to the extent permitted by applicable law) at the applicable Coupon Rate
(the Convertible Coupon Rate or the Non-Convertible Coupon Rate) compounded
quarterly during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or extend beyond the
maturity or any redemption date of the Debentures. Payments of accrued
Distributions and, to the extent permitted by applicable law, accrued interest
thereon shall be payable on the Distribution Payment Date on which the relevant
Extension Period terminates and shall be payable to Holders as they appear on
the books and records of the Trust at the close of business on the record date
next preceding such Distribution Payment Date. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements. Each
Extension Period, if any, will end on an interest payment date for the
Debentures; such date will also be a Distribution Payment Date for the
Securities. In the event that the Debenture Issuer exercises its right to defer
payment of interest, then during such Extension Period the Debenture Issuer
shall not (a) declare or pay dividends on, make distributions with respect to,
or redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its Capital Stock, or (b) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Debenture Issuer that rank pari passu with or junior in interest to the
Debentures of any series or make any guarantee payments with respect to any
guarantee by the Debenture Issuer of the debt securities of any subsidiary of
the Debenture Issuer if such guarantee ranks pari passu with or junior in
interest to the Debentures of any series (other than (i) as a result of a
reclassification of the Capital Stock of the Debenture Issuer or the exchange or
conversion of one class or series of the Capital Stock of the Debenture Issuer
for another class or series of the Capital Stock of the Debenture Issuer, (ii)
the purchase of fractional interests in shares of the Capital Stock of the
Debenture Issuer pursuant to the conversion or exchange provisions of such
Capital Stock or the security being converted into or exchanged for such Capital
Stock, (iii) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan effecting a "poison pill," or the issuance of
Capital Stock under any such plan in the future, or the redemption or repurchase
of any such rights pursuant thereto, (v) payments under the Securities
Guarantees, (vi) purchases of shares of Common Stock of the Debenture Issuer
related to the issuance of shares of Common Stock of the Debenture Issuer or
rights under any of the Debenture Issuer's benefit plans for its directors,
officers or employees and (vii) obligations under any dividend reinvestment and
stock purchase plans); but the foregoing shall not impair the ability of the
Debenture Issuer to subdivide its Common Stock into a greater number of shares.
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(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which shall be fifteen days prior to the relevant payment dates,
which dates correspond to the record and interest payment dates on the
Debentures. The relevant record dates for the Common Securities shall be the
same record dates as for the Convertible Preferred Securities. Distributions
payable on any Securities that are not punctually paid on any Distribution
Payment Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Amended and Restated Indenture. If any date on
which Distributions are payable on the Securities is not a Business Day, then
payment of the Distributions payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(d) In the event of an election by the Holder to convert the
Convertible Amount of its Securities through the Conversion Agent into shares of
Class A Common Stock pursuant to the terms of the Securities as set forth in
this Annex I to the Amended and Restated Declaration, no payment, allowance or
adjustment shall be made with respect to accumulated and unpaid Distributions on
such Convertible Amount of its Securities, or be required to be made; provided,
however, that Holders of Convertible Amounts of Securities at the close of
business on any record date for the payment of Distributions will be entitled to
receive the Distributions payable on such Convertible Amounts of Securities on
the corresponding payment date notwithstanding the conversion of such
Convertible Amounts of Securities into shares of Class A Common Stock following
such record date; provided, further that if the date of any redemption of
related Debentures falls between such record date and such corresponding payment
date, the amount of such Distribution shall include accumulated and unpaid
Distributions accrued to but excluding such date of redemption and such payment
shall be made to the converting holder.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
The Debenture Issuer will have the right at any time to cause the Trust
to be dissolved with the result that, after satisfaction of creditors of the
Trust,
(i) Convertible Debentures having an aggregate principal
amount equal to the aggregate stated Convertible Amount (expressed in
liquidation amount) of the Convertible Preferred Securities and the
Common Securities and
(ii) Non-Convertible Debentures having an aggregate principal
amount equal to the aggregate stated Non-Convertible Amount (expressed
in liquidation amount) of the Convertible Preferred Securities and the
Common Securities
will be distributed on a Pro Rata (as defined herein) basis to the Holders of
the Convertible Preferred Securities and the Common Securities in liquidation of
such Holders' interests in the Trust, within 90 days following notice given to
the Holders of the Convertible Preferred Securities, subject to the Regular
Trustees' receipt of an opinion of nationally recognized independent counsel
experienced in such matters to the effect that the Holders will not recognize
any income, gain or loss for United States federal income tax purposes as a
result of the dissolution of the Trust and such distribution to Holders of
Convertible Preferred Securities.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive
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out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors an amount equal to the
aggregate of the stated liquidation amount of such Holders' Securities plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
Liquidation,
(i) Convertible Debentures in an aggregate stated principal
amount equal to the aggregate stated Convertible Amount (expressed in
liquidation amount) of such Securities, with an interest rate equal to
the Convertible Coupon Rate of, and bearing accrued and unpaid interest
in an amount equal to the accrued and unpaid Distributions on the
Convertible Amount of, such Securities, shall have been distributed on
a Pro Rata basis to the Holders of such Securities in exchange for such
Securities; and
(ii) Non-Convertible Debentures in an aggregate stated
principal amount equal to the aggregate stated Non-Convertible Amount
(expressed in liquidation amount) of such Securities, with an interest
rate equal to the Non-Convertible Coupon Rate of, and bearing accrued
and unpaid interest in an amount equal to the accrued and unpaid
Distributions on the Non-Convertible Amount of, such Securities, shall
have been distributed on a Pro Rata basis to the Holders of such
Securities in exchange for such Securities.
If, upon any such Liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) The Debentures will mature on September 30, 2018. The Convertible
Debentures may be redeemed, in whole or in part, at any time on or after
September 30, 2004, or at any time in certain circumstances upon the occurrence
of a Tax Event (as defined below). The Non-Convertible Debentures may be
redeemed, in whole or in part, at any time.
(i) Upon the repayment of the Convertible Debentures in whole
or in part, whether at maturity, upon redemption (either at the option
of the Debenture Issuer or pursuant to a Tax Event as described below)
or otherwise, the proceeds from such repayment or payment shall be
simultaneously applied to redeem the outstanding Convertible Amount of
the Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Convertible Debentures so repaid or
redeemed at a redemption price per $1,000 in Convertible Amount equal
to the redemption price per $1,000 in principal amount of the
Convertible Debentures, together with accrued and unpaid Distributions
thereon to, but excluding, the date of the redemption, payable in cash
(the "Convertible Redemption Price") or the Adjusted Redemption Price
specified in the Amended and Restated Indenture, as the case may be.
Holders will be given not less than 30 nor more than 60 days' notice of
such redemption.
(ii) Upon the repayment of the Non-Convertible Debentures in
whole or in part, whether at maturity, upon redemption or otherwise,
the proceeds from such repayment or payment shall be simultaneously
applied to redeem the outstanding Non-Convertible Amount of the
Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Non-Convertible Debentures so repaid
or redeemed at a redemption price per $1,000 in Non-Convertible Amount
equal to the redemption price per $1,000 in principal amount of the
Non-Convertible Debentures, together with accrued and unpaid
Distributions thereon to, but excluding, the date of the redemption,
payable in cash (the "Non-Convertible Redemption Price"). Holders will
be given not less than 30 nor more than 60 days' notice of such
redemption.
(b) If less than all of the outstanding Convertible Amount of
outstanding Securities are to be so redeemed, the Convertible Amount of the
Common Securities and the Convertible Amount of the Convertible Preferred
Securities will be redeemed on a Pro Rata basis and the Convertible Amount of
the Convertible
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Preferred Securities to be redeemed will be as described in Section 4(f) below.
If less than all of the outstanding Non-Convertible Amount of outstanding
Securities are to be so redeemed, the Non-Convertible Amount of the Common
Securities and the Non-Convertible Amount of the Convertible Preferred
Securities will be redeemed on a Pro Rata basis and the Non-Convertible Amount
of the Convertible Preferred Securities to be redeemed will be as described in
Section 4(f) below.
(c) If, at any time, a Tax Event or an Investment Company Event (each,
as defined below, a "Special Event") shall occur and be continuing, the Regular
Trustees may with the consent of the Debenture Issuer, except in certain limited
circumstances in relation to a Tax Event described in this Section 4(c),
dissolve the Trust and, after satisfaction of creditors, cause
(i) Convertible Debentures held by the Institutional Trustee,
having an aggregate principal amount equal to the aggregate stated
Convertible Amount (expressed in liquidation amount) of, with an
interest rate identical to the Convertible Coupon Rate of, and accrued
and unpaid interest equal to accrued and unpaid Distributions on the
Convertible Amount of, and having the same record date for payment as,
the Securities, and
(ii) Non-Convertible Debentures held by the Institutional
Trustee, having an aggregate principal amount equal to the aggregate
stated Non-Convertible Amount (expressed in liquidation amount) of,
with an interest rate identical to the Non-Convertible Coupon Rate of,
and accrued and unpaid interest equal to accrued and unpaid
Distributions on the Non-Convertible Amount of, and having the same
record date for payment as, the Securities,
to be distributed to the Holders of Convertible Amounts of the Securities or
Non-Convertible Amounts of the Securities, as applicable, in liquidation of such
Holders' interests in the Trust on a Pro Rata basis, within 90 days following
the occurrence of such Special Event (the "90 Day Period"); provided, however,
that such dissolution and distribution shall be conditioned on (i) the Regular
Trustees' receipt of an opinion of nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the effect that
such Holders of Securities will not recognize any gain or loss for United States
federal income tax purposes as a result of the dissolution of the Trust and the
distribution of Debentures, (ii) in the case of a Tax Event, the Debenture
Issuer or the Trust being unable to avoid, within the 90 Day Period, the Tax
Event by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure that has no adverse
effect on the Trust, the Debenture Issuer, the Sponsor or the Holders of the
Securities ("Ministerial Action"), and (iii) the Debenture Issuer's prior
written consent to such dissolution and distribution.
Furthermore, if (i) after receipt of a Dissolution Tax Opinion (as
defined hereinafter) by the Regular Trustees, the Debenture Issuer has received
an opinion (a "Redemption Tax Opinion") of nationally recognized independent tax
counsel experienced in such matters that, as a result of a Tax Event, there is
more than an insubstantial risk that the Debenture Issuer would be precluded
from deducting the interest on the Convertible Debentures for United States
federal income tax purposes even after the Convertible Debentures were
distributed to the Holders of Securities in liquidation of such Holders'
interests in the Trust as described in this Section 4(c), or (ii) the Regular
Trustees shall have been informed by such tax counsel that it cannot deliver a
No Recognition Opinion to the Trust, the Debenture Issuer shall have the right,
upon not less than 30 nor more than 60 days' notice, to redeem the Convertible
Debentures (it being acknowledged that the Debenture Issuer has the right under
any circumstances to redeem the Non-Convertible Debentures), in whole or in
part, at a redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon, for cash within 90 days following the
occurrence of such Tax Event. Following such redemption, a Convertible Amount of
the Securities outstanding equal in aggregate liquidation amount to the
aggregate principal amount of the Convertible Debentures so redeemed shall be
redeemed by the Trust at the Convertible Redemption Price on a Pro Rata basis;
provided, however, that, if at the time there is available to the Debenture
Issuer or the Trust the opportunity to eliminate, within such 90 day period, the
Tax Event by taking some Ministerial Action, the Trust or the Debenture Issuer
will pursue such Ministerial Action in lieu of redemption.
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"Tax Event" means that the Regular Trustees shall have received an
opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that on or after May 10,
2000, as a result of (a) any amendment to, clarification of, 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 affecting taxation, (b) any judicial decision,
official administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, by any legislative body,
court, governmental authority or regulatory body, irrespective of the manner in
which such amendment, clarification, change or Administrative Action is made
known, which amendment, clarification, change or Administrative Action is
effective or such pronouncement or decision is announced, in each case, on or
after, May 10, 2000, there is the creation by such amendment, clarification,
change or Administrative Action of more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject to United
States federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes (other than withholding
taxes), duties or other governmental charges, or (iii) interest paid in cash by
the Debenture Issuer to the Trust on the Debentures is not, or within 90 days of
the date thereof will not be, deductible, in whole or in part, by the Debenture
Issuer for United States federal income tax purposes. Notwithstanding the
foregoing, a Tax Event shall not include any change in tax law that requires the
Debenture Issuer for United States federal income tax purposes to defer taking a
deduction for any original issue discount ("OID") that accrues with respect to
the Debentures until the interest payment related to such OID is paid by the
Debenture Issuer in cash; provided, that such change in tax law does not create
more than an insubstantial risk that the Debenture Issuer will be prevented from
taking a deduction for OID accruing with respect to the Debentures at a date
that is no later than the date the interest payment related to such OID is
actually paid by the Debenture Issuer in cash.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
such matters to the effect that, as a result of the occurrence of a change in
law or regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority on or after May 10, 2000 (a "Change in 1940 Act Law"), there is more
than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
After the date fixed by the Regular Trustees for any distribution of
Debentures upon dissolution of the Trust: (i) the Securities will no longer be
deemed to be outstanding and (ii) certificates representing Securities held in
definitive form will be deemed to represent
(a) Convertible Debentures having an aggregate principal
amount equal to the aggregate stated Convertible Amount (expressed in
liquidation amount) of, with an interest rate identical to the
Convertible Coupon Rate of, and accrued and unpaid interest (including
Compound Interest (as defined in the Amended and Restated Indenture))
equal to accrued and unpaid Distributions on the Convertible Amount of,
such Securities and
(b) Non-Convertible Debentures having an aggregate principal
amount equal to the aggregate stated Non-Convertible Amount (expressed
in liquidation amount) of, with an interest rate identical to the
Non-Convertible Coupon Rate of, and accrued and unpaid interest
(including Compound Interest (as defined in the Amended and Restated
Indenture)) equal to accrued and unpaid Distributions on the Non-
Convertible Amount of, such Securities and
until such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
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(d) The Trust may not redeem less than all of the Convertible Amount of
all the outstanding Securities unless all accrued and unpaid Distributions have
been paid on the Convertible Amount of all Securities for all quarterly
Distribution periods terminating on or prior to the date of redemption. The
Trust may not redeem less than all of the Non-Convertible Amount of all the
outstanding Securities unless all accrued and unpaid Distributions have been
paid on the Non-Convertible Amount of all Securities for all quarterly
Distribution periods terminating on or prior to the date of redemption.
(e) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Convertible Amount and the Non-Convertible
Amount of the Securities (a "Redemption/Distribution Notice") will be given by
the Trust by mail to each Holder of Securities to be redeemed or exchanged not
fewer than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 4(e), a Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage prepaid, or by
such other means suitable to assure delivery of such written notice, to Holders
of Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the books
and records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder of Securities shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder of Securities.
(f) In the event that less than all of the outstanding Convertible
Amount and the Non-Convertible Amount of the outstanding Securities are to be
redeemed, the Convertible Amount and/or the Non-Convertible Amount to be
redeemed shall be redeemed on a Pro Rata basis from each Holder of Convertible
Preferred Securities.
(g) If the outstanding Convertible Amount or Non-Convertible Amount of
Securities is to be redeemed and the Trust gives a Redemption/Distribution
Notice, which notice may only be issued if the Convertible Debentures or
Non-Convertible Debentures with respect thereto are redeemed as set out in
Article X of the Amended and Restated Indenture (which notice will be
irrevocable), then, provided that the Debenture Issuer has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption of the Debentures, the Institutional Trustee will pay the relevant
Convertible Redemption Price (or the Adjusted Redemption Price, as the case may
be) or Non-Convertible Redemption Price, as the case may be, to the Holders of
such Convertible Amount or Non-Convertible Amount by check mailed to the address
of the relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been given in
connection with a redemption and funds deposited as required, then from and
after the required date of such deposit, distributions will cease to accrue on
(i) the Convertible Amount so called for redemption and (ii) the Non-Convertible
Amount so called for redemption and all rights of Holders of the Securities
containing such Convertible Amount or Non-Convertible Amount so called for
redemption will cease, except the right of the Holders of the Securities
containing such Convertible Amount or Non-Convertible Amount to receive the
Convertible Redemption Price (or the Adjusted Redemption Price, as the case may
be) or Non- Convertible Redemption Price, as the case may be, but without
interest thereon. If any date fixed for redemption of the Convertible Amount or
Non-Convertible Amount of Securities is not a Business Day, then payment of the
Convertible Redemption Price (or the Adjusted Redemption Price, as the case may
be) or Non-Convertible Redemption Price, as the case may be, payable on such
date will be made on the next succeeding Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Convertible Redemption
Price (or the Adjusted Redemption Price, as the case may be) or Non-Convertible
Redemption Price, as the case may be, in respect of any Convertible Amount or
Non-Convertible Amount of Securities is improperly withheld or refused and not
paid either by the Institutional Trustee or by the Sponsor as guarantor pursuant
to the relevant Securities Guarantee, Distributions on such Convertible Amount
or Non-Convertible Amount, as the case may be, will continue to accrue from the
original redemption date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the Convertible
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Redemption Price (or the Adjusted Redemption Price, as the case may be) or
Non-Convertible Redemption Price, as the case may be.
Neither the Regular Trustees nor the Trust shall be required (i) in the
event of any redemption in part, to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before any selection for redemption of any Convertible Amount or Non-Convertible
Amount of Securities and ending at the close of business on the earliest date in
which the relevant Redemption/Distribution Notice is deemed to have been given
to all holders of Securities containing such Convertible Amount or
Non-Convertible Amount to be so redeemed or (ii) to register the transfer of or
exchange any Securities containing any Convertible Amount or Non-Convertible
Amount selected for redemption, in whole or in part, except for the unredeemed
portion of any Convertible Amount or Non-Convertible Amount being redeemed in
part.
(h) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (i) in respect of Convertible Preferred
Securities, to the Holders thereof, and (ii) in respect of the Common
Securities, to the Holders thereof.
(i) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding
Convertible Preferred Securities by tender, in the open market or otherwise.
5. Conversion Rights.
The Holders of Securities shall have the right with respect to the
outstanding Convertible Amount thereof at any time through the close of business
on the last Business Day prior to the Maturity Date (as defined in the Amended
and Restated Indenture) (or, in the case of any Convertible Amount of Securities
called for redemption, prior to the close of business on the Business Day prior
to the redemption date), at their option, to cause the Conversion Agent to
convert Convertible Amount of Securities, on behalf of the converting Holders,
into shares of Class A Common Stock in the manner described herein on and
subject to the following terms and conditions:
(a) All of the Convertible Amount of Securities held by any Holder (or
any portion of such Convertible Amount that is an integral multiple of $1,000)
will be convertible at the office of the Conversion Agent into fully paid and
nonassessable shares of Class A Common Stock pursuant to the Holder's direction
to the Conversion Agent to exchange such Convertible Amount of Securities for a
portion of the Convertible Debentures theretofore held by the Trust on the basis
of $1,000 in liquidation amount of Convertible Amount of Securities per $1,000
principal amount of Convertible Debentures, and immediately convert such amount
of Convertible Debentures into fully paid and nonassessable shares of Class A
Common Stock at an initial rate of 142.857 shares of Class A Common Stock per
$1,000 principal amount of Convertible Debentures (which is equivalent to a
conversion price of approximately $7.00 per share of Class A Common Stock,
subject to certain adjustments set forth in Article XII of the Amended and
Restated Indenture (as so adjusted, the "Conversion Price")). At least
$1,000,000 in liquidation amount, or all, if less than $1,000,000 in liquidation
amount, of the Convertible Amount of Securities held by the converting Holder
must be converted in connection with any conversion into shares of Class A
Common Stock pursuant to the foregoing.
(b) In order to convert any Convertible Amount of Securities into
shares of Class A Common Stock, the Holder shall submit to the Conversion Agent
at its office an irrevocable request to convert such Convertible Amount of
Securities on behalf of such Holder (the "Conversion Request"), together with
such certificates. The Conversion Request shall (i) set forth the Convertible
Amount to be converted and the name or names, if other than the Holder, in which
the shares of Class A Common Stock should be issued and (ii) direct the
Conversion Agent (a) to exchange such Convertible Amount of Securities for a
portion of the Convertible Debentures held by the Trust (at the rate of exchange
specified in the preceding paragraph) and (b) to immediately convert such
Convertible Debentures on behalf of such Holder, into shares of Class A Common
Stock (at the conversion rate specified in the preceding paragraph). The
Conversion Agent shall notify the Trust of the Holder's election to exchange
such Convertible Amount of Securities for a portion of the Convertible
Debentures held by the Trust and
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the Trust shall, upon receipt of such notice, deliver to the Conversion Agent
the appropriate principal amount of Convertible Debentures for exchange in
accordance with this Section. The Conversion Agent shall thereupon notify
Capital Trust of the Holder's election to convert such Convertible Debentures
into shares of Class A Common Stock. Holders of Securities at the close of
business on a Distribution record date will be entitled to receive the
Distribution payable on such Convertible Amount of Securities on the
corresponding Distribution payment date notwithstanding the conversion of such
Convertible Amount of Securities following such record date but prior to such
distribution payment date; provided, however, that if the date of any redemption
of the related Convertible Debentures falls between such record date and the
related Distribution payment date, the amount of such Distribution shall include
accumulated and unpaid Distributions accrued to but excluding such date of
redemption, and such payment shall be made to the converting Holder. Except as
provided above, neither the Trust nor the Sponsor will make, or be required to
make, any payment, allowance or adjustment upon any conversion on account of any
accumulated and unpaid Distributions accrued on the Convertible Amount of
Securities (including any Additional Amounts accrued thereon) surrendered for
conversion, or on account of any accumulated and unpaid dividends on the shares
of Class A Common Stock issued upon such conversion, except to the extent that
such shares are held of record on the record date for any such distributions.
The Convertible Amount of Securities shall be deemed to have been converted
immediately prior to the close of business on the day on which a Notice of
Conversion relating to such Convertible Amount of Securities is received by the
Trust in accordance with the foregoing provision (the "Conversion Date"). The
Person or Persons entitled to receive shares of Class A Common Stock issuable
upon conversion of the Convertible Debentures shall be treated for all purposes
as the record holder or holders of such shares of Class A Common Stock at such
time. As promptly as practicable on or after the Conversion Date, Capital Trust
shall issue and deliver at the office of the Conversion Agent a certificate or
certificates for the number of full shares of Class A Common Stock issuable upon
such conversion, together with the cash payment, if any, in lieu of any fraction
of any share to the Person or Persons entitled to receive the same, unless
otherwise directed by the Holder in the notice of conversion and the Conversion
Agent shall distribute such certificate or certificates to such Person or
Persons.
(c) Each Holder of Securities with respect to the Convertible Amount
thereof by his acceptance thereof appoints Wilmington Trust Company as
"Conversion Agent" for the purpose of effecting the conversion of any
Convertible Amount of Securities in accordance with this Section. In effecting
the conversion and transactions described in this Section, the Conversion Agent
shall be acting as agent of the Holders of Securities directing it to effect
such conversion transactions. The Conversion Agent is hereby authorized (i) to
exchange a Convertible Amount of Securities from time to time for Convertible
Debentures held by the Trust in connection with the conversion of such
Convertible Amount of Securities in accordance with this Section and (ii) to
convert all or a portion of the Convertible Debentures into shares of Class A
Common Stock and thereupon to deliver such shares of Class A Common Stock in
accordance with the provisions of this Section and to deliver to the Trust a new
Convertible Debenture or Convertible Debentures for any resulting unconverted
principal amount.
(d) No fractional shares of Class A Common Stock will be issued as a
result of conversion of any Convertible Amount of Securities, but in lieu
thereof such fractional interest will be paid in cash by Capital Trust, in an
amount based on the Closing Price of a share of Class A Common Stock on the date
such Convertible Amount of Securities are surrendered for conversion, to the
Conversion Agent, which in turn will make such payment to the Holder or Holders
of Securities so converted.
(e) Capital Trust shall at all times reserve and keep available out of
its authorized and unissued shares of Class A Common Stock, solely for issuance
upon the conversion of the Convertible Debentures, free from any preemptive or
other similar rights, such number of shares of Class A Common Stock as shall
from time to time be issuable upon the conversion of all the Convertible
Debentures then outstanding. Notwithstanding the foregoing, Capital Trust shall
be entitled to deliver upon conversion of Convertible Debentures, shares of
Class A Common Stock reacquired by Capital Trust (in lieu of the issuance of
authorized and unissued shares of Class A Common Stock), so long as any such
treasury shares are free and clear of all liens, charges, security interests or
encumbrances. Any shares of Class A Common Stock issued upon conversion of the
Convertible Debentures shall be duly authorized, validly issued and fully paid
and nonassessable. The Trust shall deliver the shares of Class A Common Stock
received upon conversion of the Convertible Debentures to the converting Holder
free
I-10
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and clear of all liens, charges, security interests and encumbrances, except for
United States withholding taxes. Each of Capital Trust and the Trust shall
prepare and shall use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be required by
law, and shall comply with all applicable requirements as to registration or
qualification of shares of Class A Common Stock (and all requirements to list
shares of Class A Common Stock issuable upon conversion of Convertible
Debentures that are at the time applicable), in order to enable Capital Trust to
lawfully issue shares of Class A Common Stock to the Trust upon conversion of
the Convertible Debentures and the Trust to lawfully deliver shares of Class A
Common Stock to each Holder upon conversion of any Convertible Amount of
Securities.
(f) Capital Trust will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Class A Common Stock on conversion
of Convertible Debentures and the delivery of the shares of Class A Common Stock
by the Trust upon conversion of any Convertible Amount of Securities. Capital
Trust shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of shares of Class A
Common Stock in a name other than that in which Securities whose Convertible
Amount was so converted were registered, and no such issue or delivery shall be
made unless and until the person requesting such issue has paid to the Trust the
amount of any such tax, or has established to the satisfaction of the Trust that
such tax has been paid.
(g) Nothing in the preceding Paragraph (f) shall limit the requirement
of the Trust to withhold taxes pursuant to the terms of the Securities or as set
forth in this Annex I to the Amended and Restated Declaration or to the Amended
and Restated Declaration itself or otherwise require the Institutional Trustee
or the Trust to pay any amounts on account of such withholdings.
(h) The term "Closing Price" with respect to any security on any day
means the last reported sale price, regular way on such day, or, if no sale
takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the NYSE
Composite Tape, or, if such security is not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which such security is
listed or admitted to trading, or, if such security is not listed or admitted to
trading on a national securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc., or, if such security is not
quoted or admitted to trading on such quotation system, on the principal
quotation system on which such security is listed or admitted to trading or
quoted, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the closing bid and
asked prices of such security in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any NYSE member firm selected from time to time by the Board of
Directors (or any committee duly authorized by the Board of Directors) of the
Debenture Issuer for that purpose or, if not so available in such manner, as
otherwise determined in good faith by the Board of Directors (or any committee
duly authorized by the Board of Directors) of the Debenture Issuer.
6. Voting and Other Rights - Convertible Preferred Securities.
(a) Except as provided under Sections 6(b) and 8 of this Annex I to the
Amended and Restated Declaration and as otherwise required by law and the
Amended and Restated Declaration, the Holders of the Convertible Preferred
Securities will not have voting rights.
(b) Subject to the requirements set forth in this paragraph, the
Holders of a Majority in liquidation amount of the Convertible Amount of the
Convertible Preferred Securities then outstanding, voting separately as a class,
may direct the time, method, and place of conducting any proceeding for any
remedy available to the Institutional Trustee with respect to the Convertible
Amount of the Convertible Preferred Securities or the Convertible Debentures and
the Holders of a Majority in liquidation amount of the Non-Convertible Amount of
the Convertible Preferred Securities then outstanding, voting separately as a
class, may direct the time, method, and place of conducting any proceeding for
any remedy available to the Institutional Trustee with respect to the
Non-Convertible Amount of the Convertible Preferred Securities or the
Non-Convertible Debentures, or may, in
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either case, direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Amended and Restated Declaration, including the
right to direct the Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Amended and Restated Indenture with
respect to, in the case of the Holders of such Convertible Amount, the
Convertible Debentures and, in the case of the Holders of such Non- Convertible
Amount, the Non-Convertible Debentures, (ii) waive any past default and its
consequences that is waivable under Section 5.9 of the Amended and Restated
Indenture, or (iii) exercise any right to rescind or annul a declaration that
the principal of all the Convertible Debentures and/or the Non-Convertible
Debentures, as applicable, shall be due and payable, provided, however, that if
an Event of Default under the Amended and Restated Indenture has occurred and is
continuing then the holders of 25% of the aggregate Convertible Amount or
Non-Convertible Amount (whichever corresponds to the series of Debentures in
respect of which such Event of Default has occurred and is continuing) of the
Convertible Preferred Securities then outstanding may direct the Institutional
Trustee to declare the principal of and interest on such series of Debentures
immediately due and payable; and provided, further, that, where a consent under
the Amended and Restated Indenture would require the consent or act of the
Holders of greater than a majority of the Holders in principal amount of a
series of Debentures then outstanding (a "Super Majority") affected thereby, the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Convertible Amount or the Non-Convertible Amount, as applicable,
of Convertible Preferred Securities which the relevant Super Majority represents
of the aggregate principal amount of such series of Debentures then outstanding.
The Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of any Holders of Convertible Preferred Securities. Other
than with respect to directing the time, method and place of conducting any
remedy available to the Institutional Trustee as set forth above, the
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of Convertible Preferred Securities under this
paragraph unless the Institutional Trustee has obtained an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust as a result of such action. If the
Institutional Trustee fails to enforce its rights under the Debentures, any
Holder of Convertible Preferred Securities may institute a legal proceeding
against any person to enforce the Institutional Trustee's rights under the
Debentures. If a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to pay
interest or principal on any of the Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a Holder of a Convertible Amount of Convertible Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder of
the principal of or interest on the Convertible Debentures having a principal
amount equal to the aggregate liquidation amount of the Convertible Amount of
the Convertible Preferred Securities of such Holder, and a Holder of a
Non-Convertible Amount of Convertible Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or interest on the Non-Convertible Debentures having a principal
amount equal to the aggregate liquidation amount of the Non-Convertible Amount
of the Convertible Preferred Securities of such Holder (in either case, a
"Direct Action") on or after the respective due date specified in the
Convertible Debentures or the Non-Convertible Debentures, as the case may be. In
connection with such Direct Action, the rights of the Holders of Common
Securities will be subrogated to the rights of such Holder of Convertible
Preferred Securities to the extent of any payment made by the Issuer to such
Holder of Convertible Preferred Securities in such Direct Action. Except as
provided in the preceding sentences, the Holders of Convertible Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
Any approval or direction of Holders of Convertible Preferred
Securities (or any portion thereof) may be given at a separate meeting of
Holders of Convertible Preferred Securities convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Convertible Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Convertible Preferred Securities. Each
such notice will include a statement setting forth (i) the date of such meeting
or the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
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No vote or consent of the Holders of the Convertible Preferred
Securities will be required for the Trust to redeem and cancel Convertible
Preferred Securities or to distribute the Debentures in accordance with the
Amended and Restated Declaration and the terms of the Securities.
Notwithstanding that Holders of Convertible Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Convertible Preferred Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
7. Voting Rights - Common Securities.
(a) Except as provided under Sections 7(b), 7(c) and 8 of this Annex I
of the Amended and Restated Declaration and as otherwise required by law and the
Amended and Restated Declaration, the Holders of the Common Securities will not
have voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Amended and Restated Declaration, to vote to appoint,
remove or replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Amended and Restated Declaration and
only after any Event of Default with respect to Convertible Preferred Securities
has been cured, waived, or otherwise eliminated and subject to the requirements
of the second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Amended and Restated
Declaration, including (i) directing the time, method, place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 5.9 of the Amended and Restated Indenture, or (iii) exercise any
right to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable, provided that, where a consent or action under the
Amended and Restated Indenture would require the consent or act of the relevant
Super Majority, the Institutional Trustee may only give such consent or take
such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. The
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of Convertible Preferred Securities. Other
than with respect to directing the time, method and place of conducting any
remedy available to the Institutional Trustee or the Debenture Trustee as set
forth above, the Institutional Trustee shall not take any action in accordance
with the directions of the Holders of the Common Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the Amended and Restated
Declaration, any Holder of Common Securities may institute a legal proceeding
directly against any Person to enforce the Institutional Trustee's rights under
the Amended and Restated Declaration, without first instituting a legal
proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
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No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Amended and Restated Declaration and the
terms of the Securities.
8. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the Amended
and Restated Declaration, if any proposed amendment to the Amended and Restated
Declaration provides for, or the Regular Trustees otherwise propose to effect,
(i) any action that would adversely affect the powers, preferences or special
rights of the Securities, whether by way of amendment to the Amended and
Restated Declaration or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section 8.1 of the Amended
and Restated Declaration, then the Holders of outstanding Securities voting
together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities then outstanding
affected thereby; provided, however, that if any amendment or proposal referred
to in clause (i) above would adversely affect only the Convertible Preferred
Securities or only the Common Securities, then only such affected class will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of a Majority in liquidation
amount of such class of Securities then outstanding; provided, further, that if
any amendment or proposal referred to in clause (i) above would affect only the
Convertible Amount of the Securities or would disadvantage the Holders of
Convertible Amounts of Convertible Preferred Securities vis-a-vis the Holders of
Non-Convertible Amounts of Convertible Preferred Securities, then only Holders
of Convertible Amounts of Securities will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective except with
the approval of a Majority in liquidation amount of the then-outstanding
Convertible Amount of Securities; provided, further, that if any amendment or
proposal referred to in clause (i) above would affect only the Non-Convertible
Amount of the Securities or would disadvantage the Holders of Non-Convertible
Amounts of Convertible Preferred Securities vis-a-vis the Holders of Convertible
Amounts of Convertible Preferred Securities, then only Holders of Non-
Convertible Amounts of Securities will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of the then-outstanding
Non-Convertible Amount of Securities.
(b) In the event the consent of the Institutional Trustee as the holder
of the Debentures (or a series thereof) is required under the Amended and
Restated Indenture with respect to any amendment, modification or termination of
the Amended and Restated Indenture or the Debentures (or a series thereof), the
Institutional Trustee shall request the written direction of the Holders of the
Securities (or of the Holders of the Convertible Amount or the Non-Convertible
Amount, depending on whether the direction requested is in respect of the
Convertible Debentures or the Non-Convertible Debentures) with respect to such
amendment, modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in liquidation
amount of the Securities (or of the Convertible Amount or the Non-Convertible
Amount, as applicable) then outstanding, voting together as a single class;
provided, however, that where a consent under the Amended and Restated Indenture
would require the consent of the relevant Super Majority, the Institutional
Trustee may only give such consent at the direction of the Holders of at least
the proportion in liquidation amount of the Securities (or of the Convertible
Amount or the Non-Convertible Amount, as applicable) then outstanding which the
relevant Super Majority represents of the aggregate principal amount of the
Debentures (or series thereof) then outstanding; provided, further, that the
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of Securities under this Section 8(b) unless the
Institutional Trustee has obtained an opinion of nationally recognized
independent tax counsel experienced in such matters to the effect that for the
purposes of United States federal income tax the Trust will not be classified as
other than a grantor trust as a result of such action.
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<PAGE>
9. Pro Rata.
(a) A reference in these terms of the Securities to any distribution or
treatment as being "Pro Rata" shall mean:
(i) with respect to distributions or treatments related to the
Convertible Debentures or Convertible Amount, pro rata to each Holder
of Securities according to the aggregate Convertible Amount (expressed
in liquidation amount) of the Securities held by the relevant Holder in
relation to the aggregate Convertible Amount (expressed in liquidation
amount) of all Securities outstanding unless, in relation to a payment,
an Event of Default under the Amended and Restated Declaration has
occurred and is continuing, in which case any funds available to make
such payment shall be paid first in cash to each Holder of Convertible
Preferred Securities pro rata according to the aggregate Convertible
Amount (expressed in liquidation amount) of Convertible Preferred
Securities held by the relevant Holder relative to the aggregate
Convertible Amount (expressed in liquidation amount) of all Convertible
Preferred Securities outstanding and, only after satisfaction of all
amounts owed to the Holders of the Convertible Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate
Convertible Amount (expressed in liquidation amount) of Common
Securities held by the relevant Holder relative to the aggregate
Convertible Amount (expressed in liquidation amount) of all Common
Securities outstanding; and
(ii) with respect to distributions or treatments related to
the Non-Convertible Debentures or Non-Convertible Amount, pro rata to
each Holder of Securities according to the aggregate Non- Convertible
Amount (expressed in liquidation amount) of the Securities held by the
relevant Holder in relation to the aggregate Non-Convertible Amount
(expressed in liquidation amount) of all Securities outstanding unless,
in relation to a payment, an Event of Default under the Amended and
Restated Declaration has occurred and is continuing, in which case any
funds available to make such payment shall be paid first in cash to
each Holder of the Convertible Preferred Securities pro rata according
to the aggregate Non-Convertible Amount (expressed in liquidation
amount) of Convertible Preferred Securities held by the relevant Holder
relative to the aggregate Non-Convertible Amount (expressed in
liquidation amount) of all Convertible Preferred Securities outstanding
and, only after satisfaction of all amounts owed to the Holders of the
Convertible Preferred Securities, to each Holder of Common Securities
pro rata according to the aggregate Non-Convertible Amount (expressed
in liquidation amount) of Common Securities held by the relevant Holder
relative to the aggregate Non-Convertible Amount (expressed in
liquidation amount) of all Common Securities outstanding.
10. Ranking.
The Convertible Preferred Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except that, where an
Event of Default under the Amended and Restated Declaration occurs and is
continuing, the rights of Holders of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Convertible
Preferred Securities.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Convertible Preferred Securities and Common Securities,
by the acceptance thereof, agrees to the provisions of the Convertible Preferred
Securities Guarantee and the Common Securities Guarantee, respectively,
including the subordination provisions therein and to the provisions of the
Amended and Restated Indenture.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
13. Miscellaneous.
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These terms constitute a part of the Amended and Restated Declaration.
The Sponsor will provide a copy of the Amended and Restated Declaration, the
Convertible Preferred Securities Guarantee or the Common Securities Guarantee
(as may be appropriate), and the Amended and Restated Indenture to a Holder
without charge on written request to the Sponsor at its principal place of
business.
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EXHIBIT A-1
[FORM OF CONVERTIBLE PREFERRED SECURITIES CERTIFICATE]
CERTIFICATE NUMBER:
LIQUIDATION AMOUNT OF CONVERTIBLE PREFERRED SECURITIES:
CONVERTIBLE AMOUNT OF SUCH LIQUIDATION AMOUNT:
NON-CONVERTIBLE AMOUNT OF SUCH LIQUIDATION AMOUNT:
CUSIP NO.: IF RULE 144A - [________________]; IF ACCREDITED INVESTOR -
[________________]; IF REGULATION S - [________________]
ISIN NO.: [________________] - - ONLY IF REGULATION S
A1-1
932747.9
<PAGE>
Certificate Evidencing Convertible Preferred Securities
of
CT CONVERTIBLE TRUST I
[PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE, ANY CERTIFICATE EVIDENCING
CONVERTIBLE PREFERRED SECURITIES SHALL BEAR A LEGEND IN SUBSTANTIALLY THE
FOLLOWING FORM, UNLESS OTHERWISE AGREED BY THE REGULAR TRUSTEES (WITH WRITTEN
NOTICE TO THE INSTITUTIONAL TRUSTEE): THE SECURITY EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY
OR THE SHARES OF CLASS A COMMON STOCK ISSUABLE UPON CONVERSION OR EXCHANGE OF
THE CONVERTIBLE AMOUNT OF THIS SECURITY ("COMMON STOCK") EXCEPT (A) TO CAPITAL
TRUST, INC. (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS
THE CASE MAY BE (OR, IF THIS CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, THE
TRANSFER AGENT FOR THE SHARES OF COMMON STOCK), A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
SUCH TRUSTEE OR TRANSFER AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE
MAY BE (OR, IF THIS CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, SUCH HOLDER
MUST FURNISH TO THE TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY OR CT CONVERTIBLE TRUST I (THE "TRUST") MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT). IF THIS CERTIFICATE DOES NOT EVIDENCE
SHARES OF COMMON STOCK AND IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE FOR THE CONVERTIBLE PREFERRED
SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE, SUCH
A1-2
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<PAGE>
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE TRUST
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE SECURITY EVIDENCED
HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN THE AMENDED
AND RESTATED DECLARATION REFERRED TO HEREIN.]
NO LATER THAN 10 DAYS AFTER THE ISSUE DATE OF THE CONVERTIBLE PREFERRED
SECURITIES, INFORMATION CONCERNING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE DATE, AND THE YIELD TO MATURITY (AS THOSE TERMS ARE USED FOR
FEDERAL INCOME TAX PURPOSES) OF THE CONVERTIBLE PREFERRED SECURITIES MAY BE
OBTAINED FROM THE REGULAR TRUSTEES OF CT CONVERTIBLE TRUST I AT 605 THIRD
AVENUE, 26TH FLOOR, NEW YORK, NY 10016.
Variable Step Up Convertible Trust Preferred Securities
CT Convertible Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
__________________ (the "Holder") is the registered owner of $________ aggregate
liquidation amount, of which $___________ is convertible into shares of Class A
Common Stock as set forth on the reserve hereof (the "Convertible Amount") and
$___________ is not so convertible (the "Non- Convertible Amount"), of
convertible preferred securities of the Trust, representing undivided beneficial
interests in the assets of the Trust, designated as the Variable Step Up
Convertible Trust Preferred Securities (the "Convertible Preferred Securities").
The Convertible Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Convertible Preferred Securities represented
hereby are issued and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust dated as of May 10, 2000,
as the same may be amended from time to time (the "Amended and Restated
Declaration"), including the designation of the terms of the Convertible
Preferred Securities as set forth in Annex I to the Amended and Restated
Declaration.
Capitalized terms used herein but not defined herein shall have the
meaning given them in the Amended and Restated Declaration. The Holder is
entitled to the benefits of the Convertible Preferred Securities Guarantee to
the extent provided therein. The Sponsor will provide a copy of the Amended and
Restated Declaration, the Convertible Preferred Securities Guarantee and the
Amended and Restated Indenture to the Holder without charge upon written request
to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Amended
and Restated Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Convertible
Preferred Securities as evidence of indirect beneficial ownership in the
Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon
has been properly executed, these Convertible Preferred Securities shall not be
entitled to any benefit under the Amended and Restated Declaration or be valid
or obligatory for any purpose.
A1-3
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<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ________, ____.
CT Convertible Trust I
By: __________________________________
Name:
Title: Trustee
Solely as trustee and not in his
individual capacity
A1-4
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<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
INSTITUTIONAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Preferred Securities referred to in the
within-mentioned Amended and Restated Declaration.
Dated: _________ __, ____
Wilmington Trust Company,
as Institutional Trustee or as Authentication Agent
By: _______________________________ By: _____________________________
Authorized Signatory Authorized Signatory
A1-5
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<PAGE>
[FORM OF REVERSE OF CONVERTIBLE PREFERRED SECURITIES CERTIFICATE]
Distributions payable on the Convertible Preferred Securities will be
fixed as follows:
(i) With respect to the Convertible Amount of the Convertible
Preferred Securities, distributions will be fixed at a rate per annum
of 8.25% of the Convertible Amount of the Convertible Preferred
Securities from and including May 10, 2000 to and including March 31,
2002, such rate per annum automatically increasing on April 1, 2002 to
the greater (as determined as of the last Business Day of each calendar
quarter) of the following:
(A) 10.00% per annum, such rate per annum
automatically increasing by an additional
.75% per annum (any such increase shall be
cumulative with any such prior increase(s))
on October 1, 2004 and again on each
subsequent October 1, and
(B) the Common Rate (as defined below)
(the rate in effect at any time is hereinafter referred to as the
"Convertible Coupon Rate"), and the Convertible Coupon Rate being the
rate of interest payable on the Convertible Debentures to be held by
the Institutional Trustee. Distributions in arrears with respect to the
Convertible Amount of the Securities for more than one quarter will
entitle Holders of such Convertible Amounts to Distributions on such
Distributions, calculated on the basis of an interest factor compounded
quarterly at the Convertible Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such
Distributions on Distributions unless otherwise stated. A Distribution
with respect to the Convertible Amount is payable only to the extent
that payments are made in respect of the Convertible Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. In addition, payments on the Convertible
Debentures to the Institutional Trustee shall only be available for
Distributions in respect of the Convertible Amount. The amount of
Distributions payable for any period will be computed for any full
quarterly period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly period for
which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed per 30-day month.
(ii) With respect to the Non-Convertible Amount of the
Convertible Preferred Securities, distributions will be fixed at a rate
per annum of 13.00% of the Non-Convertible Amount of the Convertible
Preferred Securities from and including May 10, 2000 to and including
September 30, 2004, such rate per annum automatically increasing by an
additional .75% per annum (any such increase shall be cumulative with
any such prior increase(s)) on October 1, 2004 and again on each
subsequent October 1 (such rate in effect at any time is hereinafter
referred to as the "Non-Convertible Coupon Rate"), and such rate being
the rate of interest payable on the Non-Convertible Debentures to be
held by the Institutional Trustee. Distributions in arrears with
respect to the Non-Convertible Amount of the Securities for more than
one quarter will entitle Holders of such Non-Convertible Amounts to
Distributions on such Distributions, calculated on the basis of an
interest factor compounded quarterly at the Non-Convertible Coupon Rate
(to the extent permitted by applicable law). The term "Distributions"
as used herein includes such Distributions on Distributions unless
otherwise stated. A Distribution with respect to the Non-Convertible
Amount is payable only to the extent that payments are made in respect
of the Non-Convertible Debentures held by the Institutional Trustee and
to the extent the Institutional Trustee has funds available therefor.
In addition, payments on the Non-Convertible Debentures to the
Institutional Trustee shall only be available for Distributions in
respect of the Non-Convertible Amount. The amount of Distributions
payable for any period will be computed for any full quarterly period
on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly period for which Distributions are
computed, Distributions will be computed on the basis of the actual
number of days elapsed per 30-day month.
A1-6
932747.9
<PAGE>
Except as otherwise described below, Distributions on the Convertible
Preferred Securities will be cumulative, will accrue from May 10, 2000 and will
be payable quarterly in arrears, on March 31, June 30, September 30 and December
31 of each year, commencing on June 30, 2000, which payment dates shall
correspond to the interest payment dates on the Debentures, to Holders of record
at the close of business on the regular record date for such Distribution which
shall be the close of business 15 days prior to such Distribution Payment Date
unless otherwise provided in the Amended and Restated Declaration. The Debenture
Issuer has the right under the Amended and Restated Indenture to defer payments
of interest by extending the interest payment period from time to time on all of
the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"); provided that no Extension Period shall last beyond the
date of the maturity or any redemption date of the Debentures and, as a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with Distributions on
such Distributions, calculated on the basis of an interest factor (to the extent
permitted by applicable law) at the applicable Coupon Rate (the Convertible
Coupon Rate or the Non-Convertible Coupon Rate) compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity or
any redemption date of the Debentures. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
The Convertible Preferred Securities shall be redeemable as provided in
the Amended and Restated Declaration.
The Convertible Amount of the Convertible Preferred Securities shall be
convertible into shares of Class A Common Stock, through (i) the exchange of
such Convertible Amount for a portion of the Convertible Debentures and (ii) the
immediate conversion of such Convertible Debentures into Debenture Issuer shares
of Class A Common Stock, in the manner and according to the terms set forth in
the Amended and Restated Declaration.
A1-7
932747.9
<PAGE>
CONVERSION REQUEST
To: Wilmington Trust Company,
as Institutional Trustee of CT Convertible Trust I and as Conversion
Agent
The undersigned owner of these Convertible Preferred Securities hereby
irrevocably exercises the option to convert the Convertible Amount of these
Convertible Preferred Securities, or the portion of such Convertible Amount
below designated, into shares of Class A Common Stock (as that term is defined
in the Amended and Restated Declaration, as defined below) in accordance with
the terms of the Amended and Restated Declaration of Trust (the "Amended and
Restated Declaration"), dated as of May 10, 2000, by John R. Klopp and Sheli Z.
Rosenberg, as Regular Trustees, Wilmington Trust Company, as Delaware Trustee,
Wilmington Trust Company, as Institutional Trustee, Capital Trust, Inc., as
Sponsor, and by the Holders, from time to time, of individual beneficial
interests in the Trust to be issued pursuant to the Amended and Restated
Declaration. Pursuant to the aforementioned exercise of the option to convert
the Convertible Amount of these Convertible Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Amended and Restated Declaration) to (i) exchange the Convertible Amount of such
Convertible Preferred Securities for a portion of the Convertible Debentures (as
that term is defined in the Amended and Restated Declaration) held by the Trust
(at the rate of exchange specified in the terms of the Convertible Preferred
Securities set forth as Annex I to the Amended and Restated Declaration) and
(ii) immediately convert such Convertible Debentures on behalf of the
undersigned, into shares of Class A Common Stock (at the conversion rate
specified in the terms of the Convertible Preferred Securities set forth as
Annex I to the Amended and Restated Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _______________, ____
in whole _____ in part _____
Amount (in liquidation amount) of
Convertible Amount of Convertible
Preferred Securities to be
converted: ____________________
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Class A Common
Stock are to be issued, along with
the address or addresses of such
person or persons.
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Signature (for conversion only)
A1-8
932747.9
<PAGE>
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
------------------------------------
------------------------------------
------------------------------------
Signature Guarantee:1 _____________
- --------
1
(Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Conversion Agent in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.)
A1-9
932747.9
<PAGE>
[FORM OF ASSIGNMENT FOR DEFINITIVE CONVERTIBLE
PREFERRED SECURITIES]
For value received ______________________ hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________________
(Please insert social security or other taxpayer identification number of
assignee.)
the within security and hereby irrevocably constitutes and appoints ____________
attorney to transfer the said security on the books of the Trust, with full
power of substitution in the premises.
In connection with any transfer of the within security occurring prior to the
Transfer Restriction Termination Date, the undersigned confirms that such
security is being transferred:
o To Capital Trust, Inc. or a subsidiary thereof; or
o to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
o To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
o Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
o Pursuant to and in compliance with Rule 144 under the Securities
Act of 1933, as amended; or
o Pursuant to an effective registration statement.
and unless the box below is checked, the undersigned confirms that such security
is not being transferred to an "affiliate," as defined in Rule 144 under the
Securities Act of 1933, as amended (an "Affiliate"), of Capital Trust, Inc.:
o The transferee is an Affiliate of Capital Trust, Inc.
Dated: ___________________________
Signature(s)
--------------------------------------
--------------------------------------
--------------------------------------
Signature Guarantee1
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Convertible Preferred Securities
Certificate in every particular without alteration or enlargement or any change
whatever.
- --------
1
(Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Conversion Agent in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.)
A1-10
932747.9
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITIES CERTIFICATE
CERTIFICATE NUMBER:
LIQUIDATION AMOUNT OF COMMON SECURITIES:
CONVERTIBLE AMOUNT OF SUCH LIQUIDATION AMOUNT:
NON-CONVERTIBLE AMOUNT OF SUCH LIQUIDATION AMOUNT:
Certificate Evidencing Common Securities
of
CT CONVERTIBLE TRUST I
Variable Step Up Convertible Trust Common Securities
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE
REGISTERED UNDER OR ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT. THE TRANSFER OF THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO
THE RESTRICTIONS SET FORTH IN THE AMENDED AND RESTATED DECLARATION
REFERRED TO BELOW.
NO LATER THAN 10 DAYS AFTER THE ISSUE DATE OF THE COMMON SECURITIES,
INFORMATION CONCERNING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE DATE, AND THE YIELD TO MATURITY (AS THOSE TERMS ARE
USED FOR FEDERAL INCOME TAX PURPOSES) OF THE COMMON SECURITIES MAY BE
OBTAINED FROM THE REGULAR TRUSTEES OF CT CONVERTIBLE TRUST I AT 605
THIRD AVENUE, 26TH FLOOR, NEW YORK, NY 10016.
CT Convertible Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
________________________________________ (the "Holder") is the registered owner
of $______ aggregate liquidation amount, of which $___________ is convertible
into shares of Class A Common Stock as set forth on the reverse hereof (the
"Convertible Amount") and $___________ is not so convertible (the
"Non-Convertible Amount"), of common securities of the Trust, representing
undivided beneficial interests in the assets of the Trust, designated the
Variable Step Up Convertible Trust Common Securities (the "Common Securities").
The Common Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of May 10, 2000, as the same
may be amended from time to time (the "Amended and Restated Declaration"),
including the designation of the terms of the Common Securities as set forth in
Annex I to the Amended and Restated Declaration.
Capitalized terms used herein but not defined herein shall have the
meaning given them in the Amended and Restated Declaration. The Holder is
entitled to the benefits of the Common Securities Guarantee to the extent
A2-1
932747.9
<PAGE>
provided therein. The Sponsor will provide a copy of the Amended and Restated
Declaration, the Common Securities Guarantee and the Amended and Restated
Indenture to the Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the Amended
and Restated Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ____
day of __________, ____.
CT Convertible Trust I
By: ____________________________________________
Name:
Title: Trustee
Solely as trustee and not in his individual
capacity
A2-2
932747.9
<PAGE>
[FORM OF REVERSE OF COMMON SECURITIES CERTIFICATE]
Distributions payable on the Common Securities will be fixed as
follows:
(i) With respect to the Convertible Amount of the Common
Securities, distributions will be fixed at a rate per annum of 8.25% of
the Convertible Amount of the Common Securities from and including May
10, 2000 to and including March 31, 2002, such rate per annum
automatically increasing on April 1, 2002 to the greater (as determined
as of the last Business Day of each calendar quarter) of the following:
(A) 10.00% per annum, such rate per annum
automatically increasing by an additional
.75% per annum (any such increase shall be
cumulative with any such prior increase(s))
on October 1, 2004 and again on each
subsequent October 1, and
(B) the Common Rate (as defined below)
(the rate in effect at any time is hereinafter referred to as the
"Convertible Coupon Rate"), and such rate being the rate of interest
payable on the Convertible Debentures to be held by the Institutional
Trustee. Distributions in arrears with respect to the Convertible
Amount of the Securities for more than one quarter will entitle Holders
of such Convertible Amounts to Distributions on such Distributions,
calculated on the basis of an interest factor compounded quarterly at
the Convertible Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such
Distributions on Distributions unless otherwise stated. A Distribution
with respect to the Convertible Amount is payable only to the extent
that payments are made in respect of the Convertible Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. In addition, payments on the Convertible
Debentures to the Institutional Trustee shall only be available for
Distributions in respect of the Convertible Amount. The amount of
Distributions payable for any period will be computed for any full
quarterly period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly period for
which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed per 30-day month.
(ii) With respect to the Non-Convertible Amount of the Common
Securities, distributions will be fixed at a rate per annum of 13.00%
of the Non-Convertible Amount of the Common Securities from and
including May 10, 2000 to and including September 30, 2004, such rate
per annum automatically increasing by an additional .75% per annum (any
such increase shall be cumulative with any such prior increase(s)) on
October 1, 2004 and again on each subsequent October 1 (such rate in
effect at any time is hereinafter referred to as the "Non-Convertible
Coupon Rate"), and such rate being the rate of interest payable on the
Non-Convertible Debentures to be held by the Institutional Trustee.
Distributions in arrears with respect to the Non-Convertible Amount of
the Securities for more than one quarter will entitle Holders of such
Non-Convertible Amounts to Distributions on such Distributions,
calculated on the basis of an interest factor compounded quarterly at
the Non-Convertible Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such
Distributions on Distributions unless otherwise stated. A Distribution
with respect to the Non- Convertible Amount is payable only to the
extent that payments are made in respect of the Non- Convertible
Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. In addition,
payments on the Non-Convertible Debentures to the Institutional Trustee
shall only be available for Distributions in respect of the
Non-Convertible Amount. The amount of Distributions payable for any
period will be computed for any full quarterly period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a
full quarterly period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of
days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from May 10, 2000 and will be payable
quarterly in arrears, on March 31, June 30, September 30 and
A2-3
932747.9
<PAGE>
December 31 of each year, commencing on June 30, 2000, which payment dates shall
correspond to the interest payment dates on the Debentures, to Holders of record
at the close of business on the regular record date for such Distribution which
shall be the close of business 15 days prior to such Distribution Payment Date
unless otherwise provided in the Amended and Restated Declaration. The Debenture
Issuer has the right under the Amended and Restated Indenture to defer payments
of interest by extending the interest payment period from time to time on all of
the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"); provided that no Extension Period shall last beyond the
date of the maturity or any redemption date of the Debentures and, as a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with Distributions on
such Distributions, calculated on the basis of an interest factor (to the extent
permitted by applicable law) at the applicable Coupon Rate (the Convertible
Coupon Rate or the Non- Convertible Coupon Rate) compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity or
any redemption date of the Debentures. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the Amended
and Restated Declaration.
The Convertible Amount of the Common Securities shall be convertible
into shares of Class A Common Stock, through (i) the exchange of such
Convertible Amount for a portion of the Convertible Debentures and (ii) the
immediate conversion of such Convertible Debentures into Debenture Issuer shares
of Class A Common Stock, in the manner and according to the terms set forth in
the Amended and Restated Declaration.
A2-4
932747.9
<PAGE>
CONVERSION REQUEST
To: Wilmington Trust Company,
as Institutional Trustee of CT Convertible Trust I and as Conversion
Agent
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert the Convertible Amount of these Common
Securities, or the portion of such Convertible Amount below designated, into
shares of Class A Common Stock (as that term is defined in the Amended and
Restated Declaration, as defined below) in accordance with the terms of the
Amended and Restated Declaration of Trust (the "Amended and Restated
Declaration"), dated as of May 10, 2000, by John R. Klopp and Sheli Z.
Rosenberg, as Regular Trustees, Wilmington Trust Company, as Delaware Trustee,
Wilmington Trust Company, as Institutional Trustee, Capital Trust, Inc., as
Sponsor, and by the Holders, from time to time, of individual beneficial
interests in the Trust to be issued pursuant to the Amended and Restated
Declaration. Pursuant to the aforementioned exercise of the option to convert
the Convertible Amount of these Common Securities, the undersigned hereby
directs the Conversion Agent (as that term is defined in the Amended and
Restated Declaration) to (i) exchange the Convertible Amount of such Common
Securities for a portion of the Convertible Debentures (as that term is defined
in the Amended and Restated Declaration) held by the Trust (at the rate of
exchange specified in the terms of the Common Securities set forth as Annex I to
the Amended and Restated Declaration) and (ii) immediately convert such
Convertible Debentures on behalf of the undersigned, into shares of Class A
Common Stock (at the conversion rate specified in the terms of the Common
Securities set forth as Annex I to the Amended and Restated Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _______________, ____
in whole _____ in part _____
Amount (in liquidation amount) of
Convertible Amount of Common
Securities to be converted:
____________________
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Class A Common
Stock are to be issued, along with
the address or addresses of such
person or persons.
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Signature (for conversion only)
A2-5
932747.9
<PAGE>
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
------------------------------------
------------------------------------
------------------------------------
Signature Guarantee:1 ______________
- --------
1 (Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Conversion Agent in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.)
A2-6
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<PAGE>
[FORM OF ASSIGNMENT FOR DEFINITIVE COMMON SECURITIES]
For value received ______________________ hereby sell(s), assign(s) and
transfer(s) unto _________________________________________
(Please insert social security or other taxpayer identification number of
assignee.)
the within security and hereby irrevocably constitutes and appoints ____________
attorney to transfer the said security on the books of the Trust, with full
power of substitution in the premises.
In connection with any transfer of the within security occurring prior to the
Transfer Restriction Termination Date, the undersigned confirms that such
security is being transferred:
o To Capital Trust, Inc. or a subsidiary thereof; or
o Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
o To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
o Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
o Pursuant to and in compliance with Rule 144 under the Securities
Act of 1933, as amended; or
o Pursuant to an effective registration statement.
and unless the box below is checked, the undersigned confirms that such security
is not being transferred to an "affiliate," as defined in Rule 144 under the
Securities Act of 1933, as amended (an "Affiliate"), of Capital Trust, Inc.:
o The transferee is an Affiliate of Capital Trust, Inc.
Dated: ____________________________
Signature(s)
--------------------------------------
--------------------------------------
--------------------------------------
Signature Guarantee1
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Common Securities Certificate in every
particular without alteration or enlargement or any change whatever.
- --------
1
(Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Conversion Agent in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.)
A2-7
932747.9
<PAGE>
EXHIBIT B
SPECIMEN OF CONVERTIBLE DEBENTURE
B-1
932747.9
<PAGE>
EXHIBIT C
SPECIMEN OF NON-CONVERTIBLE DEBENTURE
C-1
932747.9
- --------------------------------------------------------------------------------
AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE AGREEMENT
CT CONVERTIBLE TRUST I
Dated as of May 10, 2000
- --------------------------------------------------------------------------------
936489.4
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I DEFINITIONS AND INTERPRETATION.........................................2
SECTION 1.1. Definitions and Interpretation............................2
ARTICLE II TRUST INDENTURE ACT....................................................5
SECTION 2.1. Trust Indenture Act; Application.........................5
SECTION 2.2. Lists of Holders.........................................5
SECTION 2.3. Reports by the Preferred Guarantee Trustee...............5
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee..........5
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........6
SECTION 2.6. Events of Default; Waiver................................6
SECTION 2.7. Event of Default; Notice.................................6
SECTION 2.8. Conflicting Interests....................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE
TRUSTEE................................................................7
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.....7
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee............9
SECTION 3.3. Not Responsible for Recitals or Issuance of Amended and
Restated Preferred Securities Guarantee................11
ARTICLE IV PREFERRED GUARANTEE TRUSTEE...........................................11
SECTION 4.1. Preferred Guarantee Trustee: Eligibility................11
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustee.......................................12
ARTICLE V GUARANTEE.............................................................13
SECTION 5.1. Guarantee...............................................13
SECTION 5.2. Waiver of Notice and Demand.............................13
SECTION 5.3. Obligations Not Affected................................13
SECTION 5.4. Rights of Holders.......................................14
SECTION 5.5. Guarantee of Payment....................................15
SECTION 5.6. Subrogation.............................................15
SECTION 5.7. Independent Obligations.................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.............................15
SECTION 6.1. Limitation of Transactions..............................15
SECTION 6.2. Subordination...........................................16
ARTICLE VII TERMINATION...........................................................16
SECTION 7.1. Termination.............................................16
ARTICLE VIII INDEMNIFICATION.......................................................17
SECTION 8.1. Exculpation............................................17
SECTION 8.2. Indemnification........................................17
936489.4
<PAGE>
ARTICLE IX MISCELLANEOUS.........................................................18
SECTION 9.1. Successors and Assigns.................................18
SECTION 9.2. Amendments.............................................18
SECTION 9.3. Notices................................................19
SECTION 9.4. Benefit................................................19
SECTION 9.5. Governing Law..........................................19
</TABLE>
936489.4
<PAGE>
PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE (AS DEFINED IN THE AMENDED
AND RESTATED DECLARATION), ANY CERTIFICATE EVIDENCING THIS AMENDED AND RESTATED
PREFERRED SECURITIES GUARANTEE SHALL BEAR A LEGEND IN SUBSTANTIALLY THE
FOLLOWING FORM, UNLESS OTHERWISE AGREED BY THE REGULAR TRUSTEES (WITH WRITTEN
NOTICE TO THE INSTITUTIONAL TRUSTEE) PURSUANT TO SECTION 9.1(D) OF THE AMENDED
AND RESTATED DECLARATION:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE SHARES OF CLASS A COMMON STOCK
("COMMON STOCK") OF CAPITAL TRUST, INC. (THE "COMPANY") ISSUABLE UPON CONVERSION
OR EXCHANGE OF THE CONVERTIBLE AMOUNT OF THIS SECURITY EXCEPT (A) THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE
CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF
THIS CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, THE TRANSFER AGENT FOR THE
SHARES OF COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR TRANSFER
AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF THIS
CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL
936489.4
<PAGE>
OPINIONS OR OTHER INFORMATION AS THE COMPANY OR CT CONVERTIBLE TRUST I ("THE
TRUST") MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT). IF THIS CERTIFICATE DOES NOT
EVIDENCE SHARES OF COMMON STOCK AND IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE TRUST MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
936489.4
<PAGE>
AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE AGREEMENT
This AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE
AGREEMENT (the "Amended and Restated Preferred Securities Guarantee"), dated as
of May 10, 2000, is executed and delivered by Capital Trust, Inc., a Maryland
corporation (the "Guarantor") and successor to Capital Trust, a California
business trust, and Wilmington Trust Company, as trustee (the "Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of CT Convertible
Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Amended and Restated Declaration"), dated as of the date hereof among the
trustees of the Issuer named therein, the Guarantor, as sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof $150,000,000 in aggregate liquidation
amount of its variable step up convertible trust preferred securities (the
"Preferred Securities"), comprised of $89,742,000 in liquidation amount of
convertible preferred securities (the "Convertible Preferred Amount") and
$60,528,000 in liquidation amount of non-convertible preferred securities (the
"Non- Convertible Preferred Amount").
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Amended and Restated Preferred Securities
Guarantee, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Amended and Restated Common Securities
Guarantee") in substantially identical terms to this Amended and Restated
Preferred Securities Guarantee for the benefit of the holders of the Common
Securities (as defined herein), except that if an Event of Default (as defined
in the Amended and Restated Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Amended and Restated Common Securities Guarantee are subordinated to the
rights of Holders of Preferred Securities to receive Guarantee Payments under
this Amended and Restated Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Amended and Restated
Preferred Securities Guarantee for the benefit of the Holders.
936489.4
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Amended and Restated Preferred Securities Guarantee, unless
the context otherwise requires:
(a) capitalized terms used in this Amended and Restated Preferred
Securities Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Amended and Restated Declaration as at the
date of execution of this Amended and Restated Preferred Securities Guarantee
have the same meaning when used in this Amended and Restated Preferred
Securities Guarantee unless otherwise defined in this Amended and Restated
Preferred Securities Guarantee;
(c) a term defined anywhere in this Amended and Restated Preferred
Securities Guarantee has the same meaning throughout;
(d) all references to "the Amended and Restated Preferred Securities
Guarantee" or "this Amended and Restated Preferred Securities Guarantee" are to
this Amended and Restated Preferred Securities Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Amended and Restated Preferred Securities
Guarantee to Articles and Sections are to Articles and Sections of this Amended
and Restated Preferred Securities Guarantee, unless otherwise specified; a term
defined in the Trust Indenture Act has the same meaning when used in this
Amended and Restated Preferred Securities Guarantee, unless otherwise defined in
this Amended and Restated Preferred Securities Guarantee or unless the context
otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Amended and Restated Indenture" means the Amended and Restated
Indenture dated as of the date hereof, between the Guarantor (the "Debenture
Issuer") and Wilmington Trust Company, as trustee.
"Authorized Officer" of a Person means any Person that is authorized to
legally bind such Person, provided, however, that the Authorized Officer signing
an Officers' Certificate given pursuant to Section 314(a)(4) of the Trust
Indenture Act shall be the principal executive, financial or accounting officer
of such Person.
"Class A Common Stock" means the class A common stock, par value $.01,
of the Guarantor.
"Capital Stock" means any and all common stock and preferred stock of
the Guarantor.
936489.4
2
<PAGE>
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Common Stock" includes Class A Common Stock, class B common stock, par
value $.01 per share, of the Guarantor, and any other common stock of the
Guarantor which has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Guarantor and which is not subject to redemption by the
Guarantor.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 1100 North Market Street, 9th
Floor, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" means (a) a failure by the Guarantor to perform any
of its payment or other obligations under this Amended and Restated Preferred
Securities Guarantee or (b) if applicable, the failure by the Guarantor to
deliver Class A Common Stock upon an appropriate election by a Holder of
Preferred Securities to convert the Preferred Securities into Class A Common
Stock.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Amended and Restated Declaration) that are required to be paid on such
Preferred Securities to the extent the Issuer shall have funds available
therefor, (ii) the redemption price (the "Redemption Price") or Adjusted
Redemption Price specified in the Amended and Restated Indenture, as the case
may be, and all accrued and unpaid Distributions to the date of redemption, to
the extent the Issuer has funds available therefor, with respect to any
Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the redemption of all of the Preferred Securities
or the distribution of Debentures to the Holders in exchange for Preferred
Securities as provided in the Amended and Restated Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the extent
the Issuer shall have funds available therefor, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders of Preferred
Securities then outstanding upon the liquidation of the Issuer (in either case,
the "Liquidation Distribution"). If an Event of Default (as defined in the
Amended and Restated Indenture) has occurred and is continuing, the rights of
holders of the Common Securities to receive payments under the Amended and
Restated Common Securities Guarantee Agreement are subordinated to the rights of
Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
936489.4
3
<PAGE>
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Majority in liquidation amount of the Convertible Preferred Amount"
means, except as provided in the terms of the Preferred Securities, or except as
provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a
class, of more than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of the outstanding Convertible Preferred Amount.
"Majority in liquidation amount of the Non-Convertible Preferred
Amount" means, except as provided in the terms of the Preferred Securities, or
except as provided by the Trust Indenture Act, a vote by Holder(s), voting
separately as a class, of more than 50% of the liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of the outstanding Non- Convertible Preferred Amount.
"Majority in liquidation amount of the Preferred Securities" means,
except as provided in the terms of the Preferred Securities, or except as
provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a
class, of more than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all Preferred Securities.
"Preferred Guarantee Trustee" means Wilmington Trust Company, until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Amended and Restated Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
secretary, any assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Securities" means the Common Securities and the Preferred
Securities.
936489.4
4
<PAGE>
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Amended and Restated Preferred Securities Guarantee is subject
to the provisions of the Trust Indenture Act that are required to be part of
this Amended and Restated Preferred Securities Guarantee and shall, to the
extent applicable, be governed by such provisions and the Trust Indenture Act
shall be applicable to this Amended and Restated Preferred Securities Guarantee
except as otherwise set forth herein, as if such guarantee had been issued
pursuant to an effective registration statement; and
(b) if and to the extent that any provision of this Amended and
Restated Preferred Securities Guarantee limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 2.2. Lists of Holders.
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") (i) within 14 days
after each record date for payment of Distributions, as of such record date, and
(ii) at any other time, within 30 days of receipt by the Guarantor of a written
request for a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Preferred Guarantee Trustee, provided that the
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Preferred Guarantee Trustee by the Guarantor. The Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee.
Within 60 days after December 31 of each year, the Preferred Guarantee
Trustee shall provide to the Holders such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Preferred Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information (if any) as are required by Section 314 and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, the manner and at the times required by Section 314 of the Trust
Indenture Act.
936489.4
5
<PAGE>
Delivery of such reports, information and documents to the Preferred
Guarantee Trustee is for informational purposes only and the Preferred Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder (as to which the Preferred Guarantee Trustee is entitled
to rely exclusively on Officers' Certificates).
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Amended and Restated Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default that is an Event of Default in respect of all
Preferred Securities and its consequences; provided, however, that if the Event
of Default is in respect of only the outstanding Convertible Preferred Amount,
then only the Holders of a Majority in liquidation amount of the outstanding
Convertible Preferred Amount may, by vote on behalf of the Holders of the
outstanding Convertible Preferred Amount, waive any such past Event of Default
and its consequences; provided, further, that if the Event of Default is in
respect of only the outstanding Non-Convertible Preferred Amount, then only the
Holders of a Majority in liquidation amount of the outstanding Non-Convertible
Preferred Amount may, by vote on behalf of the Holders of the outstanding
Non-Convertible Preferred Amount, waive any such past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Amended and Restated Preferred Securities Guarantee,
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible Officer of the
Preferred Guarantee Trustee, transmit by mail, first class postage prepaid, to
the Holders, notices of all such Events of Default unless such defaults have
been cured before the giving of such notice, provided that the Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders except in the case of a default in the Guarantor's obligation to make
Guarantee Payments.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice thereof, or a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of this Amended and Restated
Preferred Securities Guarantee shall have obtained actual knowledge thereof.
936489.4
6
<PAGE>
SECTION 2.8. Conflicting Interests.
The Amended and Restated Declaration shall be deemed to be specifically
described in this Amended and Restated Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Amended and Restated Preferred Securities Guarantee shall be
held by the Preferred Guarantee Trustee for the benefit of the Holders and the
Preferred Guarantee Trustee shall not transfer this Amended and Restated
Preferred Securities Guarantee to any Person except a Holder exercising his or
her rights pursuant to Section 5.4(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and succession of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Amended and Restated Preferred Securities
Guarantee for the benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Amended and Restated Preferred Securities Guarantee, and no implied
covenants shall be read into this Amended and Restated Preferred Securities
Guarantee against the Preferred Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Amended and Restated Preferred Securities Guarantee, and shall use
the same degree of care and skill in its exercise thereof as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Amended and Restated Preferred Securities
Guarantee shall be construed to relieve the Preferred Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the
Preferred Guarantee Trustee shall be determined
solely by the express provisions of this Amended and
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Restated Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Amended and Restated Preferred Securities Guarantee,
and no implied covenants or obligations shall be read
into this Amended and Restated Preferred Securities
Guarantee against the Preferred Guarantee Trustee;
and
(B) in the absence of bad faith on the part
of the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Preferred Guarantee Trustee
and conforming to the requirements of this Amended
and Restated Preferred Securities Guarantee; but in
the case of any such certificates or opinions that by
any provision hereof are specifically required to be
furnished to the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Amended and
Restated Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Preferred Guarantee
Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Preferred Guarantee 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 not less than a
Majority in liquidation amount of the Preferred
Securities relating to the time, method and place
of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Amended and
Restated Preferred Securities Guarantee; and
(iv) no provision of this Amended and Restated Preferred
Securities Guarantee shall require the Preferred
Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in
the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such
funds or liability is not reasonably assured to it
under the terms of this Amended and Restated
Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee
Trustee, against such risk or liability is not
reasonably assured to it.
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SECTION 3.2. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or
refraining from acting upon, any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of
indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated
by this Amended and Restated Preferred Securities
Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Amended and
Restated Preferred Securities Guarantee, the
Preferred Guarantee Trustee shall deem it desirable
that a matter be proved or established before
taking, suffering or omitting any action hereunder,
the Preferred Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty
to see to any recording, filing or registration of
any instrument (or any rerecording, refiling or
re-registration thereof).
(v) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion
of such counsel with respect to legal matters 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 accordance
with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Preferred
Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration
of this Amended and Restated Preferred Securities
Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Amended and Restated Preferred
Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided
to the Preferred Guarantee Trustee such security
and indemnity, reasonably satisfactory to the
Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses
and the expenses of the Preferred Guarantee
Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in
complying with such request or direction, including
such reasonable advances as may be requested by the
Preferred Guarantee Trustee; provided that nothing
contained in this
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Section 3.2(a)(vi) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Amended
and Restated Preferred Securities Guarantee.
(vii) The Preferred Guarantee 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, debenture, note,
other evidence of indebtedness or other paper or
document, but the Preferred Guarantee Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it may
see fit.
(viii) The Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any
duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the
Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due
care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders and
the signature of the Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective
to perform any such action. No third party shall be
required to inquire as to the authority of the
Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of
this Amended and Restated Preferred Securities
Guarantee, both of which shall be conclusively
evidenced by the Preferred Guarantee Trustee's or
its agent's taking such action.
(x) Whenever in the administration of this Amended and
Restated Preferred Securities Guarantee the
Preferred Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing
any remedy or right or taking any other action
hereunder, the Preferred Guarantee Trustee:
(A) may request instructions from the
Holders of a Majority in liquidation amount of the
Preferred Securities if the remedy or right or the
taking of any such action will affect all Holders of
Preferred Securities; provided, however, that if the
remedy or right or the taking of any such action will
affect only Holders of the outstanding
Non-Convertible Preferred Amount or will result in
such Holders being disadvantaged vis-a-vis the
Holders of the outstanding Convertible Preferred
Amount, then the Preferred Guarantee Trustee may
request instructions only from the Holders of a
Majority in liquidation amount of the outstanding
Non-Convertible Preferred Amount; and provided,
further, that if the remedy or right or the taking of
any such action will affect only the Holders of the
outstanding Convertible Preferred Amount or will
result in such Holders being disadvantaged vis-a-vis
the Holders of the outstanding Non-Convertible
Preferred Amount, then the Preferred Guarantee
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Trustee may request instructions only from the
Holders of a Majority in liquidation amount of the
outstanding Convertible Preferred Amount,
(B) may refrain from enforcing such remedy
or right or taking such other action until such
instructions are received, and
(C) shall be protected in conclusively
relying on or acting in accordance with such
instructions.
(xi) The Preferred Securities Trustee shall not be
liable for any action taken, suffered, or omitted
to be taken by it in good faith and reasonably
believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Amended and Restated Preferred Securities
Guarantee.
(b) No provision of this Amended and Restated Preferred Securities
Guarantee shall be deemed to impose any duty or obligation on the Preferred
Guarantee Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Preferred Guarantee Trustee shall be construed to be
a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Amended and
Restated Preferred Securities Guarantee.
The recitals contained in this Amended and Restated Preferred
Securities Guarantee shall be taken as the statements of the Guarantor, and the
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Preferred Guarantee Trustee makes no representation as to the
validity or sufficiency of this Amended and Restated Preferred Securities
Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee: Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any
State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise
corporate trust powers, having a combined capital
and surplus of at least 50 million U.S.
936489.4
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dollars ($50,000,000), and subject to supervision
or examination by federal, state, territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually,
pursuant to law or to the requirements of the
supervising or examining authority referred to
above, then, for the purposes of this Section
4.1(a)(ii), 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.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of resignation or removal, the Preferred
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Amended and Restated Preferred Securities
Guarantee or removal or resignation of the Preferred Guarantee Trustee pursuant
to this Section 4.2, the Guarantor
936489.4
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shall pay to the Preferred Guarantee Trustee all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders. The Guarantor will honor all obligations relating
to the conversion of the Preferred Securities into Class A Common Stock of the
Guarantor as set forth in the Amended and Restated Declaration and the Amended
and Restated Indenture.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Amended and
Restated Preferred Securities Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right or remedy to require a
proceeding first against the Issuer or any other Person before proceeding
directly against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Amended and Restated Preferred Securities Guarantee shall in no way
be affected or impaired by reason of the happening from time to time of any of
the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price or Adjusted Redemption Price, as
the case may be, Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for payment of
Distributions, Redemption Price or Adjusted Redemption Price, as the case may
be, Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms
936489.4
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of the Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities then outstanding have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Amended and Restated Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under this Amended and Restated Preferred Securities Guarantee
if the remedy or direction of the exercise of any such power will affect all
Holders of Preferred Securities; provided, however, that if the remedy or right
or exercise will affect only Holders of the outstanding Non-Convertible
Preferred Amount or will result in such Holders being disadvantaged vis-a-vis
the Holders of the outstanding Convertible Preferred Amount, then the Preferred
Guarantee Trustee may request instructions only from the Holders of a Majority
in liquidation amount of the outstanding Non- Convertible Preferred Amount; and
provided, further, that if the remedy or exercise will affect only the Holders
of the outstanding Convertible Preferred Amount or will result in such Holders
being disadvantaged vis-a-vis the Holders of the outstanding Non-Convertible
Preferred Amount, then the Preferred Guarantee Trustee may request instructions
only from the Holders of a Majority in liquidation amount of the outstanding
Convertible Preferred Amount.
(b) If the Preferred Guarantee Trustee fails to enforce this Amended
and Restated Preferred Securities Guarantee, any Holder of Preferred Securities
may institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Amended and Restated Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Preferred Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be brought first
against the Issuer or any other person or entity before proceeding directly
against the Guarantor. Notwithstanding the foregoing, if the Guarantor has
failed to make a guarantee payment, a Holder of Preferred Securities may
directly institute a
936489.4
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proceeding against the Guarantor for enforcement of this Amended and Restated
Preferred Securities Guarantee for such payment.
SECTION 5.5. Guarantee of Payment.
This Amended and Restated Preferred Securities Guarantee creates a
guarantee of payment and not of collection.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Preferred Securities against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Amended and Restated Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Amended and Restated Preferred Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Amended and Restated
Preferred Securities 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 over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Amended and
Restated Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if (i) the
Guarantor has exercised its option to defer interest payments on any of the
Debentures by extending the interest payment period and such extension period,
or any extension thereof, shall be continuing, (ii) the Guarantor shall be in
default with respect to its payment or other obligations under this Amended and
Restated Preferred Securities Guarantee or (iii) there shall have occurred and
be continuing an Event of Default under the Amended and Restated Declaration or
any event that, with the giving of notice or lapse of time or both, would
constitute an Event of Default under the Amended and Restated Declaration, then
the Guarantor shall not (a) declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make any
liquidation payment with respect to, any of its Capital Stock or (b) make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities of the Guarantor that rank pari passu with or junior
in interest to the Debentures of any series
936489.4
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or make any guarantee payments with respect to any guarantee by the Guarantor of
the debt securities of any subsidiary of the Guarantor if such guarantee ranks
pari passu with or junior in interest to the Debentures of any series (other
than (i) as a result of a reclassification of the Capital Stock of the Guarantor
or the exchange or conversion of one class or series of the Capital Stock of the
Guarantor for another class or series of the Capital Stock of the Guarantor,
(ii) the purchase of fractional interests in shares of the Capital Stock of the
Guarantor pursuant to the conversion or exchange provisions of such Capital
Stock or the security being converted into or exchanged for such Capital Stock,
(iii) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan effecting a "poison pill," or the issuance of Capital
Stock under any such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (v) payments under this Amended and Restated
Preferred Securities Guarantee and the Common Securities Guarantee, (vi)
purchases of shares of Common Stock related to the issuance of Common Stock or
rights under any of the Guarantor's benefit plans for its directors, officers or
employees and (vii) obligations under any dividend reinvestment and stock
purchase plans). For avoidance of doubt, the provisions of this Section shall
not impair the ability of the Guarantor to subdivide its Common Stock into a
greater number of shares.
SECTION 6.2. Subordination.
This Amended and Restated Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor (except any liabilities that may be pari passu expressly by their
terms), (ii) pari passu with the most senior preferred or preference shares now
or hereafter issued by the Guarantor and with any guaranty now or hereafter
entered into by the Guarantor in respect of any preferred or preference stock of
any Affiliate of the Guarantor and (iii) senior to the Guarantor's Capital
Stock.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Amended and Restated Preferred Securities Guarantee shall
terminate as to each Holder (i) upon full payment of the Redemption Price and
accrued and unpaid distributions with respect to all Preferred Securities, (ii)
with respect to a Holder of any Convertible Preferred Amount, upon the
distribution of the Class A Common Stock to such Holder upon the conversion of
such Holder's Convertible Preferred Amount into the Class A Common Stock and
with respect to a Holder of any Non-Convertible Preferred Amount, upon the
payment in full of all amounts due to such Holder in respect of such Holder's
Non-Convertible Preferred Amount, (iii) the distribution of the Debentures to
the Holders of the Preferred Securities or (iv) full payment of the amounts
payable in accordance with the Amended and Restated Declaration upon liquidation
of the Issuer. This Amended and Restated Preferred Securities Guarantee shall
terminate completely upon full payment of the amounts payable in accordance with
the Amended and Restated Declaration. Notwithstanding the foregoing, this
Amended and Restated Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sum paid under the Preferred Securities or under
this Amended and Restated Preferred Securities Guarantee.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Amended and Restated Preferred Securities Guarantee and in a manner that
such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Amended and Restated
Preferred Securities Guarantee or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2. Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The provisions of this Section 8.2 shall survive the termination of
this Amended and Restated Preferred Securities Guarantee or the resignation or
removal of the Preferred Guarantee Trustee.
When the Preferred Guarantee Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1(d) or
Section 5.1(e) of the Amended and Restated Indenture, the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns.
All guarantees and agreements contained in this Amended and Restated
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Preferred Securities then outstanding. Except in connection
with any merger or consolidation of the Guarantor with or into another entity
permitted by Section 9.1 of the Amended and Restated Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by
Section 9.1 of the Amended and Restated Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Amended and Restated Preferred
Securities Guarantee without the prior approval of the holders of at least a
Majority in liquidation amount of the Preferred Securities then outstanding.
SECTION 9.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Amended and Restated Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Preferred Securities then outstanding;
provided, however, that with respect to any change that will adversely affect
only the rights of Holders of the outstanding Non-Convertible Preferred Amount
or that will disadvantage such Holders vis-a-vis the Holders of the outstanding
Convertible Preferred Amount, this Amended and Restated Preferred Securities
Guarantee may only be amended with the approval of the Holders of at least a
Majority in liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of the outstanding
Non- Convertible Preferred Amount; provided, further, that with respect to any
change that will adversely affect only the rights of Holders of the outstanding
Convertible Preferred Amount or that will disadvantage such Holders vis-a-vis
the Holders of the outstanding Non-Convertible Preferred Amount, this Amended
and Restated Preferred Securities Guarantee may only be amended with the
approval of the Holders of at least a Majority in liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of the outstanding Non-Convertible Preferred Amount.
The provisions of Section 12.2 of the Amended and Restated Declaration with
respect to meetings of Holders apply to the giving of such approval.
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SECTION 9.3. Notices.
All notices provided for in this Amended and Restated Preferred
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
Wilmington Trust Company
1100 North Market Street,
9th Floor
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, NY 10016
Attention: Chief Financial Officer
(c) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4. Benefit.
This Amended and Restated Preferred Securities Guarantee is solely for
the benefit of the Holders of the Preferred Securities and, subject to Section
3.1(a), is not separately transferable from the Preferred Securities.
SECTION 9.5. Governing Law.
THIS AMENDED AND RESTATED PREFERRED SECURITIES SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
936489.4
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THIS AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE AGREEMENT is
executed as of the day and year first above written.
CAPITAL TRUST, INC., as Guarantor
By: /s/ John R. Klopp
Name: John R. Klopp
Title: Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Preferred Guarantee Trustee
By: /s/ Roseline K. Maney
Name: Roseline K. Maney
Title: Senior Financial Services Officer
936489.4
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AMENDED AND RESTATED COMMON SECURITIES GUARANTEE AGREEMENT
CT CONVERTIBLE TRUST I
Dated as of May 10, 2000
- --------------------------------------------------------------------------------
936609.4
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION.........................2
SECTION 1.1. Definitions and Interpretation.........2
ARTICLE II GUARANTEE..............................................3
SECTION 2.1. Guarantee..............................3
SECTION 2.2. Waiver of Notice and Demand............4
SECTION 2.3. Obligations Not Affected...............4
SECTION 2.4. Rights of Holders......................5
SECTION 2.5. Guarantee of Payment...................5
SECTION 2.6. Subrogation............................5
SECTION 2.7. Independent Obligations................5
ARTICLE III LIMITATION OF TRANSACTIONS; SUBORDINATION..............6
SECTION 3.1. Limitation of Transactions.............6
SECTION 3.2. Subordination..........................6
ARTICLE IV TERMINATION............................................7
SECTION 4.1. Termination............................7
ARTICLE V MISCELLANEOUS..........................................7
SECTION 5.1. Successors and Assigns.................7
SECTION 5.2. Amendments.............................8
SECTION 5.3. Notices................................8
SECTION 5.4. Benefit................................9
SECTION 5.5. Governing Law..........................9
936609.4
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PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE (AS DEFINED IN THE AMENDED
AND RESTATED DECLARATION), ANY CERTIFICATE EVIDENCING THIS AMENDED AND RESTATED
COMMON SECURITIES GUARANTEE SHALL BEAR A LEGEND IN SUBSTANTIALLY THE FOLLOWING
FORM, UNLESS OTHERWISE AGREED BY THE REGULAR TRUSTEES (WITH WRITTEN NOTICE TO
THE INSTITUTIONAL TRUSTEE) PURSUANT TO SECTION 9.1(D) OF THE AMENDED AND
RESTATED DECLARATION:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE SHARES OF CLASS A COMMON STOCK
("COMMON STOCK") OF CAPITAL TRUST, INC. (THE "COMPANY") ISSUABLE UPON CONVERSION
OR EXCHANGE OF THE CONVERTIBLE AMOUNT OF THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE
CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF
THIS CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, THE TRANSFER AGENT FOR THE
SHARES OF COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR TRANSFER
AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE
936609.4
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SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF THIS
CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR CT CONVERTIBLE TRUST I ("THE TRUST") MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT). IF THIS CERTIFICATE DOES NOT EVIDENCE SHARES OF COMMON STOCK AND IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE
MAY BE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY
OR THE TRUST MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
936609.4
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AMENDED AND RESTATED COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Amended and Restated Common Securities
Guarantee"), dated as of May 10, 2000, is executed and delivered by Capital
Trust, Inc., a Maryland corporation (the "Guarantor") and successor to Capital
Trust, a California business trust for the benefit of the Holders (as defined
herein) from time to time of the Common Securities (as defined herein) of CT
Convertible Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Amended and Restated Declaration"), dated as of the date hereof, among the
trustees of the Issuer named therein, the Guarantor, as sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof $4,650,000 in aggregate liquidation
amount of its variable step up convertible trust common securities (the "Common
Securities");
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Amended and Restated Common Securities Guarantee,
to pay to the Holders of the Common Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Amended and Restated Preferred Securities
Guarantee") in substantially identical terms to this Amended and Restated Common
Securities Guarantee for the benefit of the holders of the Preferred Securities
(as defined herein), except that if an Event of Default (as defined in the
Amended and Restated Indenture), has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under the Amended
and Restated Common Securities Guarantee are subordinated to the rights of
holders of Preferred Securities to receive guarantee payments under the Amended
and Restated Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Amended and Restated Common
Securities Guarantee for the benefit of the Holders.
936609.4
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Amended and Restated Common Securities Guarantee, unless the
context otherwise requires:
(a) capitalized terms used in this Amended and Restated Common
Securities Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Amended and Restated Declaration as at the
date of execution of this Amended and Restated Common Securities Guarantee have
the same meaning when used in this Amended and Restated Common Securities
Guarantee unless otherwise defined in this Amended and Restated Common
Securities Guarantee;
(c) a term defined anywhere in this Amended and Restated Common
Securities Guarantee has the same meaning throughout;
(d) all references to "the Amended and Restated Common Securities
Guarantee" or "this Amended and Restated Common Securities Guarantee" are to
this Amended and Restated Common Securities Guarantee as modified, supplemented
or amended from time to time;
(e) all references in this Amended and Restated Common Securities
Guarantee to Articles and Sections are to Articles and Sections of this Amended
and Restated Common Securities Guarantee, unless otherwise specified; and
(f) a reference to the singular includes the plural and vice versa.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Amended and Restated Declaration) that are required to be paid on such
Common Securities to the extent the Issuer shall have funds available therefor,
(ii) the redemption price (the "Redemption Price") or Adjusted Redemption Price,
specified in the Amended and Restated Indenture, as the case may be, and all
accrued and unpaid Distributions to the date of redemption, to the extent the
Issuer has funds available therefor, with respect to any Common Securities
called for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the redemption of all of the Common Securities or the distribution of
Debentures to the Holders in exchange for Common Securities as provided in
936609.4
2
<PAGE>
the Amended and Restated Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Common
Securities to the date of payment, to the extent the Issuer shall have funds
available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders of Common Securities then outstanding upon
the liquidation of the Issuer (in either case, the "Liquidation Distribution").
If an Event of Default (as defined in the Amended and Restated Indenture) has
occurred and is continuing, the rights of holders of the Common Securities to
receive payments under the Amended and Restated Common Securities Guarantee
Agreement are subordinated to the rights of Holders of Preferred Securities to
receive Guarantee Payments (as defined in the Amended and Restated Preferred
Securities Guarantee Agreement).
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Common Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Majority in liquidation amount of the Common Securities" means,
except as provided in the terms of the Common Securities, or except as provided
by the Trust Indenture Act, a vote by Holder(s), voting separately as a class,
of more than 50% of the liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all Common Securities.
"Preferred Securities" means the securities representing preferred
undivided beneficial interests in the assets of the Issuer.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
936609.4
3
<PAGE>
SECTION 2.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Amended and
Restated Common Securities Guarantee and of any liability to which it applies or
may apply, presentment, demand for payment, any right or remedy to require a
proceeding first against the Issuer or any other Person before proceeding
directly against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 2.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Amended and Restated Common Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price or the Adjusted Redemption Price,
as the case may be, Liquidation Distribution or any other sums payable under the
terms of the Common Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the Common
Securities (other than an extension of time for payment of Distributions,
Redemption Price or the Adjusted Redemption Price, as the case may be,
Liquidation Distribution or other sum payable that results from the extension of
any interest payment period on the Debentures permitted by the Amended and
Restated Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
936609.4
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(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4. Rights of Holders.
Any Holder of Common Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Amended and
Restated Common Securities Guarantee, without first instituting a legal
proceeding against the Issuer or any other person or entity. The Guarantor
waives any right or remedy to require that any action be brought first against
the Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 2.5. Guarantee of Payment.
This Amended and Restated Common Securities Guarantee creates a
guarantee of payment and not of collection.
SECTION 2.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Amended and Restated Common Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Amended and Restated
Common Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Amended and Restated Common Securities 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 over such amount to the Holders.
SECTION 2.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Amended and
Restated Common Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 2.3 hereof.
936609.4
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ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions.
So long as any Common Securities remain outstanding, if (i) the
Guarantor has exercised its option to defer interest payments on the Debentures
by extending the interest payment period and such extension period, or any
extension thereof, shall be continuing, (ii) the Guarantor shall be in default
with respect to its Guarantee Payments or other obligations under this Amended
and Restated Common Securities Guarantee or (iii) there shall have occurred and
be continuing an Event of Default under the Amended and Restated Declaration or
any event that, with the giving of notice or lapse of time or both, would
constitute an Event of Default under the Amended and Restated Declaration, then
the Guarantor shall not (a) declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, or make any liquidation
payment with respect to, any of its Capital Stock or (b) make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities of the Guarantor that rank pari passu with or junior in interest
to the Debentures of any series or make any guarantee payments with respect to
any guarantee by the Guarantor of the debt securities of any subsidiary of the
Guarantor if such guarantee ranks pari passu with or junior in interest to the
Debentures of any series (other than (i) as a result of a reclassification of
the Capital Stock of the Guarantor or the exchange or conversion of one class or
series of the Capital Stock of the Guarantor for another class or series of the
Capital Stock of the Guarantor, (ii) the purchase of fractional interests in
shares of the Capital Stock of the Guarantor pursuant to the conversion or
exchange provisions of such Capital Stock or the security being converted into
or exchanged for such Capital Stock, (iii) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan effecting a
"poison pill," or the issuance of Capital Stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (v)
payments under this Amended and Restated Common Securities Guarantee and the
Convertible Preferred Securities Guarantee, (vi) purchases of shares of Common
Stock related to the issuance of Common Stock or rights under any of the
Guarantor's benefit plans for its directors, officers or employees and (vii)
obligations under any dividend reinvestment and stock purchase plans). For
avoidance of doubt, the provisions of this Section shall not impair the ability
of the Guarantor to subdivide its Common Stock into a greater number of shares.
SECTION 3.2. Subordination.
This Amended and Restated Common Securities Guarantee will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all other liabilities of the Guarantor (except any
liabilities that may be pari passu expressly by their terms), (ii) pari passu
with the most senior preferred or preference shares now or
936609.4
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hereafter issued by the Guarantor and with any guaranty now or hereafter entered
into by the Guarantor in respect of any preferred or preference stock of any
Affiliate of the Guarantor and (iii) senior to the Guarantor's Capital Stock.
ARTICLE IV
TERMINATION
SECTION 4.1. Termination.
This Amended and Restated Common Securities Guarantee shall terminate
upon (i) full payment of the Redemption Price and accrued and unpaid
distributions with respect to all Common Securities, (ii) the distribution of
the Debentures to the Holders of the Common Securities, or (iii) full payment of
the amounts payable in accordance with the Amended and Restated Declaration upon
liquidation of the Issuer. This Amended and Restated Common Securities Guarantee
shall terminate completely upon full payment of the amounts payable in
accordance with the Amended and Restated Declaration. Notwithstanding the
foregoing, this Amended and Restated Common Securities Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sum paid under the Common Securities or under
this Amended and Restated Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns.
All guarantees and agreements contained in this Amended and Restated
Common Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Common Securities then outstanding. Except in connection with
any merger or consolidation of the Guarantor with or into another entity
permitted by Section 9.1 of the Amended and Restated Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by
Section 9.1 of the Amended and Restated Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Amended and Restated Common
Securities Guarantee without the prior approval of the holders of at least a
Majority in liquidation amount of the Common Securities then outstanding.
936609.4
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SECTION 5.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Amended and Restated Common Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Common Securities then outstanding.
The provisions of Section 12.2 of the Amended and Restated Declaration with
respect to meetings of Holders apply to the giving of such approval.
SECTION 5.3. Notices.
All notices provided for in this Amended and Restated Common Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Regular Trustees at the
Issuer's mailing address set forth below (or such other address as the Issuer
may give notice of to the Holders of the Common Securities):
CT Convertible Trust I
c/o Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, NY 10016
Attention: Chief Financial Officer
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Common Securities):
Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, NY 10016
Attention: Chief Financial Officer
(c) If given to any Holder of Common Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed
936609.4
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address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 5.4. Benefit.
This Amended and Restated Common Securities Guarantee is solely for the
benefit of the Holders of the Common Securities and is not separately
transferable from the Common Securities.
SECTION 5.5. Governing Law.
THIS AMENDED AND RESTATED COMMON SECURITIES GUARANTEE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
936609.4
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THIS AMENDED AND RESTATED COMMON SECURITIES GUARANTEE is executed as of
the day and year first above written.
CAPITAL TRUST, INC. as Guarantor
By:/s/ John R. Klopp
Name: John R. Klopp
Title: Chief Executive Officer
936609.4
