--------------------------------------------------------------------------------
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
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
TABLE OF CONTENTS
Page
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
ii
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
iii
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
932388.8
iv
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 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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
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
"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
3
"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 0000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, 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
4
"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
5
"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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"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
932388.8
7
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
8
"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.
932388.8
9
"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
932388.8
10
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)
932388.8
11
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.
932388.8
12
(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.
932388.8
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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
14
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.
932388.8
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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
16
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
17
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.
932388.8
20
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
932388.8
21
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
22
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
23
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.
932388.8
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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
932388.8
25
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
932388.8
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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
932388.8
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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:
932388.8
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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);
932388.8
29
(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.
932388.8
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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
932388.8
31
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.
932388.8
32
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
932388.8
33
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
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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
932388.8
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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
932388.8
39
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.
932388.8
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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
41
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
932388.8
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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.
932388.8
43
(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
44
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
45
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 xxxx 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 xxxx (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.
932388.8
46
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
932388.8
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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.
932388.8
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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
932388.8
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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.
932388.8
50
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.
932388.8
51
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., 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, 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
932388.8
52
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/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
932388.8
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%
932388.8
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%
932388.8
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
A-1
932388.8
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 000 XXXXX
XXXXXX, 00XX XXXXX, XXX XXXX, XX 00000.
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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932388.8
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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932388.8
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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932388.8
[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
A-5
932388.8
[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
A-6
932388.8
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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932388.8
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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932388.8
[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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932388.8
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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932388.8
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
"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 000 XXXXX
XXXXXX, 00XX XXXXX, XXX XXXX, XX 00000.
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
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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
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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 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
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[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
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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
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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
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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
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EXHIBIT C
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
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
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