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AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE AGREEMENT
CT CONVERTIBLE TRUST I
Dated as of May 10, 2000
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936489.4
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION.........................................2
SECTION 1.1. Definitions and Interpretation............................2
ARTICLE II TRUST INDENTURE ACT....................................................5
SECTION 2.1. Trust Indenture Act; Application.........................5
SECTION 2.2. Lists of Holders.........................................5
SECTION 2.3. Reports by the Preferred Guarantee Trustee...............5
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee..........5
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........6
SECTION 2.6. Events of Default; Waiver................................6
SECTION 2.7. Event of Default; Notice.................................6
SECTION 2.8. Conflicting Interests....................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE
TRUSTEE................................................................7
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.....7
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee............9
SECTION 3.3. Not Responsible for Recitals or Issuance of Amended and
Restated Preferred Securities Guarantee................11
ARTICLE IV PREFERRED GUARANTEE TRUSTEE...........................................11
SECTION 4.1. Preferred Guarantee Trustee: Eligibility................11
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustee.......................................12
ARTICLE V GUARANTEE.............................................................13
SECTION 5.1. Guarantee...............................................13
SECTION 5.2. Waiver of Notice and Demand.............................13
SECTION 5.3. Obligations Not Affected................................13
SECTION 5.4. Rights of Holders.......................................14
SECTION 5.5. Guarantee of Payment....................................15
SECTION 5.6. Subrogation.............................................15
SECTION 5.7. Independent Obligations.................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.............................15
SECTION 6.1. Limitation of Transactions..............................15
SECTION 6.2. Subordination...........................................16
ARTICLE VII TERMINATION...........................................................16
SECTION 7.1. Termination.............................................16
ARTICLE VIII INDEMNIFICATION.......................................................17
SECTION 8.1. Exculpation............................................17
SECTION 8.2. Indemnification........................................17
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ARTICLE IX MISCELLANEOUS.........................................................18
SECTION 9.1. Successors and Assigns.................................18
SECTION 9.2. Amendments.............................................18
SECTION 9.3. Notices................................................19
SECTION 9.4. Benefit................................................19
SECTION 9.5. Governing Law..........................................19
936489.4
PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE (AS DEFINED IN THE AMENDED
AND RESTATED DECLARATION), ANY CERTIFICATE EVIDENCING THIS AMENDED AND RESTATED
PREFERRED SECURITIES GUARANTEE SHALL BEAR A LEGEND IN SUBSTANTIALLY THE
FOLLOWING FORM, UNLESS OTHERWISE AGREED BY THE REGULAR TRUSTEES (WITH WRITTEN
NOTICE TO THE INSTITUTIONAL TRUSTEE) PURSUANT TO SECTION 9.1(D) OF THE AMENDED
AND RESTATED DECLARATION:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE SHARES OF CLASS A COMMON STOCK
("COMMON STOCK") OF CAPITAL TRUST, INC. (THE "COMPANY") ISSUABLE UPON CONVERSION
OR EXCHANGE OF THE CONVERTIBLE AMOUNT OF THIS SECURITY EXCEPT (A) THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE
CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF
THIS CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, THE TRANSFER AGENT FOR THE
SHARES OF COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR TRANSFER
AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF THIS
CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL
936489.4
OPINIONS OR OTHER INFORMATION AS THE COMPANY OR CT CONVERTIBLE TRUST I ("THE
TRUST") MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT). IF THIS CERTIFICATE DOES NOT
EVIDENCE SHARES OF COMMON STOCK AND IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE TRUST MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
936489.4
AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE AGREEMENT
This AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE
AGREEMENT (the "Amended and Restated Preferred Securities Guarantee"), dated as
of May 10, 2000, is executed and delivered by Capital Trust, Inc., a Maryland
corporation (the "Guarantor") and successor to Capital Trust, a California
business trust, and Wilmington Trust Company, as trustee (the "Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of CT Convertible
Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Amended and Restated Declaration"), dated as of the date hereof among the
trustees of the Issuer named therein, the Guarantor, as sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof $150,000,000 in aggregate liquidation
amount of its variable step up convertible trust preferred securities (the
"Preferred Securities"), comprised of $89,742,000 in liquidation amount of
convertible preferred securities (the "Convertible Preferred Amount") and
$60,528,000 in liquidation amount of non-convertible preferred securities (the
"Non- Convertible Preferred Amount").
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Amended and Restated Preferred Securities
Guarantee, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Amended and Restated Common Securities
Guarantee") in substantially identical terms to this Amended and Restated
Preferred Securities Guarantee for the benefit of the holders of the Common
Securities (as defined herein), except that if an Event of Default (as defined
in the Amended and Restated Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Amended and Restated Common Securities Guarantee are subordinated to the
rights of Holders of Preferred Securities to receive Guarantee Payments under
this Amended and Restated Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Amended and Restated
Preferred Securities Guarantee for the benefit of the Holders.
936489.4
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Amended and Restated Preferred Securities Guarantee, unless
the context otherwise requires:
(a) capitalized terms used in this Amended and Restated Preferred
Securities Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Amended and Restated Declaration as at the
date of execution of this Amended and Restated Preferred Securities Guarantee
have the same meaning when used in this Amended and Restated Preferred
Securities Guarantee unless otherwise defined in this Amended and Restated
Preferred Securities Guarantee;
(c) a term defined anywhere in this Amended and Restated Preferred
Securities Guarantee has the same meaning throughout;
(d) all references to "the Amended and Restated Preferred Securities
Guarantee" or "this Amended and Restated Preferred Securities Guarantee" are to
this Amended and Restated Preferred Securities Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Amended and Restated Preferred Securities
Guarantee to Articles and Sections are to Articles and Sections of this Amended
and Restated Preferred Securities Guarantee, unless otherwise specified; a term
defined in the Trust Indenture Act has the same meaning when used in this
Amended and Restated Preferred Securities Guarantee, unless otherwise defined in
this Amended and Restated Preferred Securities Guarantee or unless the context
otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Amended and Restated Indenture" means the Amended and Restated
Indenture dated as of the date hereof, between the Guarantor (the "Debenture
Issuer") and Wilmington Trust Company, as trustee.
"Authorized Officer" of a Person means any Person that is authorized to
legally bind such Person, provided, however, that the Authorized Officer signing
an Officers' Certificate given pursuant to Section 314(a)(4) of the Trust
Indenture Act shall be the principal executive, financial or accounting officer
of such Person.
"Class A Common Stock" means the class A common stock, par value $.01,
of the Guarantor.
"Capital Stock" means any and all common stock and preferred stock of
the Guarantor.
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"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Common Stock" includes Class A Common Stock, class B common stock, par
value $.01 per share, of the Guarantor, and any other common stock of the
Guarantor which has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Guarantor and which is not subject to redemption by the
Guarantor.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 0000 Xxxxx Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" means (a) a failure by the Guarantor to perform any
of its payment or other obligations under this Amended and Restated Preferred
Securities Guarantee or (b) if applicable, the failure by the Guarantor to
deliver Class A Common Stock upon an appropriate election by a Holder of
Preferred Securities to convert the Preferred Securities into Class A Common
Stock.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Amended and Restated Declaration) that are required to be paid on such
Preferred Securities to the extent the Issuer shall have funds available
therefor, (ii) the redemption price (the "Redemption Price") or Adjusted
Redemption Price specified in the Amended and Restated Indenture, as the case
may be, and all accrued and unpaid Distributions to the date of redemption, to
the extent the Issuer has funds available therefor, with respect to any
Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the redemption of all of the Preferred Securities
or the distribution of Debentures to the Holders in exchange for Preferred
Securities as provided in the Amended and Restated Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the extent
the Issuer shall have funds available therefor, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders of Preferred
Securities then outstanding upon the liquidation of the Issuer (in either case,
the "Liquidation Distribution"). If an Event of Default (as defined in the
Amended and Restated Indenture) has occurred and is continuing, the rights of
holders of the Common Securities to receive payments under the Amended and
Restated Common Securities Guarantee Agreement are subordinated to the rights of
Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
936489.4
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"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Majority in liquidation amount of the Convertible Preferred Amount"
means, except as provided in the terms of the Preferred Securities, or except as
provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a
class, of more than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of the outstanding Convertible Preferred Amount.
"Majority in liquidation amount of the Non-Convertible Preferred
Amount" means, except as provided in the terms of the Preferred Securities, or
except as provided by the Trust Indenture Act, a vote by Holder(s), voting
separately as a class, of more than 50% of the liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of the outstanding Non- Convertible Preferred Amount.
"Majority in liquidation amount of the Preferred Securities" means,
except as provided in the terms of the Preferred Securities, or except as
provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a
class, of more than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all Preferred Securities.
"Preferred Guarantee Trustee" means Wilmington Trust Company, until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Amended and Restated Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
secretary, any assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Securities" means the Common Securities and the Preferred
Securities.
936489.4
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Amended and Restated Preferred Securities Guarantee is subject
to the provisions of the Trust Indenture Act that are required to be part of
this Amended and Restated Preferred Securities Guarantee and shall, to the
extent applicable, be governed by such provisions and the Trust Indenture Act
shall be applicable to this Amended and Restated Preferred Securities Guarantee
except as otherwise set forth herein, as if such guarantee had been issued
pursuant to an effective registration statement; and
(b) if and to the extent that any provision of this Amended and
Restated Preferred Securities Guarantee limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 2.2. Lists of Holders.
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") (i) within 14 days
after each record date for payment of Distributions, as of such record date, and
(ii) at any other time, within 30 days of receipt by the Guarantor of a written
request for a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Preferred Guarantee Trustee, provided that the
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Preferred Guarantee Trustee by the Guarantor. The Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee.
Within 60 days after December 31 of each year, the Preferred Guarantee
Trustee shall provide to the Holders such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Preferred Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information (if any) as are required by Section 314 and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, the manner and at the times required by Section 314 of the Trust
Indenture Act.
936489.4
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Delivery of such reports, information and documents to the Preferred
Guarantee Trustee is for informational purposes only and the Preferred Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder (as to which the Preferred Guarantee Trustee is entitled
to rely exclusively on Officers' Certificates).
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Amended and Restated Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default that is an Event of Default in respect of all
Preferred Securities and its consequences; provided, however, that if the Event
of Default is in respect of only the outstanding Convertible Preferred Amount,
then only the Holders of a Majority in liquidation amount of the outstanding
Convertible Preferred Amount may, by vote on behalf of the Holders of the
outstanding Convertible Preferred Amount, waive any such past Event of Default
and its consequences; provided, further, that if the Event of Default is in
respect of only the outstanding Non-Convertible Preferred Amount, then only the
Holders of a Majority in liquidation amount of the outstanding Non-Convertible
Preferred Amount may, by vote on behalf of the Holders of the outstanding
Non-Convertible Preferred Amount, waive any such past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Amended and Restated Preferred Securities Guarantee,
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible Officer of the
Preferred Guarantee Trustee, transmit by mail, first class postage prepaid, to
the Holders, notices of all such Events of Default unless such defaults have
been cured before the giving of such notice, provided that the Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders except in the case of a default in the Guarantor's obligation to make
Guarantee Payments.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice thereof, or a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of this Amended and Restated
Preferred Securities Guarantee shall have obtained actual knowledge thereof.
936489.4
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SECTION 2.8. Conflicting Interests.
The Amended and Restated Declaration shall be deemed to be specifically
described in this Amended and Restated Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Amended and Restated Preferred Securities Guarantee shall be
held by the Preferred Guarantee Trustee for the benefit of the Holders and the
Preferred Guarantee Trustee shall not transfer this Amended and Restated
Preferred Securities Guarantee to any Person except a Holder exercising his or
her rights pursuant to Section 5.4(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and succession of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Amended and Restated Preferred Securities
Guarantee for the benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Amended and Restated Preferred Securities Guarantee, and no implied
covenants shall be read into this Amended and Restated Preferred Securities
Guarantee against the Preferred Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Amended and Restated Preferred Securities Guarantee, and shall use
the same degree of care and skill in its exercise thereof as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Amended and Restated Preferred Securities
Guarantee shall be construed to relieve the Preferred Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the
Preferred Guarantee Trustee shall be determined
solely by the express provisions of this Amended and
936489.4
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Restated Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Amended and Restated Preferred Securities Guarantee,
and no implied covenants or obligations shall be read
into this Amended and Restated Preferred Securities
Guarantee against the Preferred Guarantee Trustee;
and
(B) in the absence of bad faith on the part
of the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Preferred Guarantee Trustee
and conforming to the requirements of this Amended
and Restated Preferred Securities Guarantee; but in
the case of any such certificates or opinions that by
any provision hereof are specifically required to be
furnished to the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Amended and
Restated Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Preferred Guarantee
Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be
taken by it in good faith in accordance with the
direction of the Holders of not less than a
Majority in liquidation amount of the Preferred
Securities relating to the time, method and place
of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Amended and
Restated Preferred Securities Guarantee; and
(iv) no provision of this Amended and Restated Preferred
Securities Guarantee shall require the Preferred
Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in
the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such
funds or liability is not reasonably assured to it
under the terms of this Amended and Restated
Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee
Trustee, against such risk or liability is not
reasonably assured to it.
936489.4
8
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or
refraining from acting upon, any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of
indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated
by this Amended and Restated Preferred Securities
Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Amended and
Restated Preferred Securities Guarantee, the
Preferred Guarantee Trustee shall deem it desirable
that a matter be proved or established before
taking, suffering or omitting any action hereunder,
the Preferred Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty
to see to any recording, filing or registration of
any instrument (or any rerecording, refiling or
re-registration thereof).
(v) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion
of such counsel with respect to legal matters shall
be full and complete authorization and protection
in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance
with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Preferred
Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration
of this Amended and Restated Preferred Securities
Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Amended and Restated Preferred
Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided
to the Preferred Guarantee Trustee such security
and indemnity, reasonably satisfactory to the
Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses
and the expenses of the Preferred Guarantee
Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in
complying with such request or direction, including
such reasonable advances as may be requested by the
Preferred Guarantee Trustee; provided that nothing
contained in this
936489.4
9
Section 3.2(a)(vi) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Amended
and Restated Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Preferred Guarantee Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it may
see fit.
(viii) The Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any
duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the
Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due
care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders and
the signature of the Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective
to perform any such action. No third party shall be
required to inquire as to the authority of the
Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of
this Amended and Restated Preferred Securities
Guarantee, both of which shall be conclusively
evidenced by the Preferred Guarantee Trustee's or
its agent's taking such action.
(x) Whenever in the administration of this Amended and
Restated Preferred Securities Guarantee the
Preferred Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing
any remedy or right or taking any other action
hereunder, the Preferred Guarantee Trustee:
(A) may request instructions from the
Holders of a Majority in liquidation amount of the
Preferred Securities if the remedy or right or the
taking of any such action will affect all Holders of
Preferred Securities; provided, however, that if the
remedy or right or the taking of any such action will
affect only Holders of the outstanding
Non-Convertible Preferred Amount or will result in
such Holders being disadvantaged vis-a-vis the
Holders of the outstanding Convertible Preferred
Amount, then the Preferred Guarantee Trustee may
request instructions only from the Holders of a
Majority in liquidation amount of the outstanding
Non-Convertible Preferred Amount; and provided,
further, that if the remedy or right or the taking of
any such action will affect only the Holders of the
outstanding Convertible Preferred Amount or will
result in such Holders being disadvantaged vis-a-vis
the Holders of the outstanding Non-Convertible
Preferred Amount, then the Preferred Guarantee
936489.4
10
Trustee may request instructions only from the
Holders of a Majority in liquidation amount of the
outstanding Convertible Preferred Amount,
(B) may refrain from enforcing such remedy
or right or taking such other action until such
instructions are received, and
(C) shall be protected in conclusively
relying on or acting in accordance with such
instructions.
(xi) The Preferred Securities Trustee shall not be
liable for any action taken, suffered, or omitted
to be taken by it in good faith and reasonably
believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Amended and Restated Preferred Securities
Guarantee.
(b) No provision of this Amended and Restated Preferred Securities
Guarantee shall be deemed to impose any duty or obligation on the Preferred
Guarantee Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Preferred Guarantee Trustee shall be construed to be
a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Amended and
Restated Preferred Securities Guarantee.
The recitals contained in this Amended and Restated Preferred
Securities Guarantee shall be taken as the statements of the Guarantor, and the
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Preferred Guarantee Trustee makes no representation as to the
validity or sufficiency of this Amended and Restated Preferred Securities
Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee: Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any
State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise
corporate trust powers, having a combined capital
and surplus of at least 50 million U.S.
936489.4
11
dollars ($50,000,000), and subject to supervision
or examination by federal, state, territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually,
pursuant to law or to the requirements of the
supervising or examining authority referred to
above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of resignation or removal, the Preferred
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Amended and Restated Preferred Securities
Guarantee or removal or resignation of the Preferred Guarantee Trustee pursuant
to this Section 4.2, the Guarantor
936489.4
12
shall pay to the Preferred Guarantee Trustee all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders. The Guarantor will honor all obligations relating
to the conversion of the Preferred Securities into Class A Common Stock of the
Guarantor as set forth in the Amended and Restated Declaration and the Amended
and Restated Indenture.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Amended and
Restated Preferred Securities Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right or remedy to require a
proceeding first against the Issuer or any other Person before proceeding
directly against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Amended and Restated Preferred Securities Guarantee shall in no way
be affected or impaired by reason of the happening from time to time of any of
the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price or Adjusted Redemption Price, as
the case may be, Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for payment of
Distributions, Redemption Price or Adjusted Redemption Price, as the case may
be, Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms
936489.4
13
of the Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities then outstanding have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Amended and Restated Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under this Amended and Restated Preferred Securities Guarantee
if the remedy or direction of the exercise of any such power will affect all
Holders of Preferred Securities; provided, however, that if the remedy or right
or exercise will affect only Holders of the outstanding Non-Convertible
Preferred Amount or will result in such Holders being disadvantaged vis-a-vis
the Holders of the outstanding Convertible Preferred Amount, then the Preferred
Guarantee Trustee may request instructions only from the Holders of a Majority
in liquidation amount of the outstanding Non- Convertible Preferred Amount; and
provided, further, that if the remedy or exercise will affect only the Holders
of the outstanding Convertible Preferred Amount or will result in such Holders
being disadvantaged vis-a-vis the Holders of the outstanding Non-Convertible
Preferred Amount, then the Preferred Guarantee Trustee may request instructions
only from the Holders of a Majority in liquidation amount of the outstanding
Convertible Preferred Amount.
(b) If the Preferred Guarantee Trustee fails to enforce this Amended
and Restated Preferred Securities Guarantee, any Holder of Preferred Securities
may institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Amended and Restated Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Preferred Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be brought first
against the Issuer or any other person or entity before proceeding directly
against the Guarantor. Notwithstanding the foregoing, if the Guarantor has
failed to make a guarantee payment, a Holder of Preferred Securities may
directly institute a
936489.4
14
proceeding against the Guarantor for enforcement of this Amended and Restated
Preferred Securities Guarantee for such payment.
SECTION 5.5. Guarantee of Payment.
This Amended and Restated Preferred Securities Guarantee creates a
guarantee of payment and not of collection.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Preferred Securities against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Amended and Restated Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Amended and Restated Preferred Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Amended and Restated
Preferred Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Amended and
Restated Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if (i) the
Guarantor has exercised its option to defer interest payments on any of the
Debentures by extending the interest payment period and such extension period,
or any extension thereof, shall be continuing, (ii) the Guarantor shall be in
default with respect to its payment or other obligations under this Amended and
Restated Preferred Securities Guarantee or (iii) there shall have occurred and
be continuing an Event of Default under the Amended and Restated Declaration or
any event that, with the giving of notice or lapse of time or both, would
constitute an Event of Default under the Amended and Restated Declaration, then
the Guarantor shall not (a) declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make any
liquidation payment with respect to, any of its Capital Stock or (b) make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities of the Guarantor that rank pari passu with or junior
in interest to the Debentures of any series
936489.4
15
or make any guarantee payments with respect to any guarantee by the Guarantor of
the debt securities of any subsidiary of the Guarantor if such guarantee ranks
pari passu with or junior in interest to the Debentures of any series (other
than (i) as a result of a reclassification of the Capital Stock of the Guarantor
or the exchange or conversion of one class or series of the Capital Stock of the
Guarantor for another class or series of the Capital Stock of the Guarantor,
(ii) the purchase of fractional interests in shares of the Capital Stock of the
Guarantor pursuant to the conversion or exchange provisions of such Capital
Stock or the security being converted into or exchanged for such Capital Stock,
(iii) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan effecting a "poison pill," or the issuance of Capital
Stock under any such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (v) payments under this Amended and Restated
Preferred Securities Guarantee and the Common Securities Guarantee, (vi)
purchases of shares of Common Stock related to the issuance of Common Stock or
rights under any of the Guarantor's benefit plans for its directors, officers or
employees and (vii) obligations under any dividend reinvestment and stock
purchase plans). For avoidance of doubt, the provisions of this Section shall
not impair the ability of the Guarantor to subdivide its Common Stock into a
greater number of shares.
SECTION 6.2. Subordination.
This Amended and Restated Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor (except any liabilities that may be pari passu expressly by their
terms), (ii) pari passu with the most senior preferred or preference shares now
or hereafter issued by the Guarantor and with any guaranty now or hereafter
entered into by the Guarantor in respect of any preferred or preference stock of
any Affiliate of the Guarantor and (iii) senior to the Guarantor's Capital
Stock.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Amended and Restated Preferred Securities Guarantee shall
terminate as to each Holder (i) upon full payment of the Redemption Price and
accrued and unpaid distributions with respect to all Preferred Securities, (ii)
with respect to a Holder of any Convertible Preferred Amount, upon the
distribution of the Class A Common Stock to such Holder upon the conversion of
such Holder's Convertible Preferred Amount into the Class A Common Stock and
with respect to a Holder of any Non-Convertible Preferred Amount, upon the
payment in full of all amounts due to such Holder in respect of such Holder's
Non-Convertible Preferred Amount, (iii) the distribution of the Debentures to
the Holders of the Preferred Securities or (iv) full payment of the amounts
payable in accordance with the Amended and Restated Declaration upon liquidation
of the Issuer. This Amended and Restated Preferred Securities Guarantee shall
terminate completely upon full payment of the amounts payable in accordance with
the Amended and Restated Declaration. Notwithstanding the foregoing, this
Amended and Restated Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sum paid under the Preferred Securities or under
this Amended and Restated Preferred Securities Guarantee.
936489.4
16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Amended and Restated Preferred Securities Guarantee and in a manner that
such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Amended and Restated
Preferred Securities Guarantee or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2. Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The provisions of this Section 8.2 shall survive the termination of
this Amended and Restated Preferred Securities Guarantee or the resignation or
removal of the Preferred Guarantee Trustee.
When the Preferred Guarantee Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1(d) or
Section 5.1(e) of the Amended and Restated Indenture, the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
936489.4
17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns.
All guarantees and agreements contained in this Amended and Restated
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Preferred Securities then outstanding. Except in connection
with any merger or consolidation of the Guarantor with or into another entity
permitted by Section 9.1 of the Amended and Restated Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by
Section 9.1 of the Amended and Restated Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Amended and Restated Preferred
Securities Guarantee without the prior approval of the holders of at least a
Majority in liquidation amount of the Preferred Securities then outstanding.
SECTION 9.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Amended and Restated Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Preferred Securities then outstanding;
provided, however, that with respect to any change that will adversely affect
only the rights of Holders of the outstanding Non-Convertible Preferred Amount
or that will disadvantage such Holders vis-a-vis the Holders of the outstanding
Convertible Preferred Amount, this Amended and Restated Preferred Securities
Guarantee may only be amended with the approval of the Holders of at least a
Majority in liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of the outstanding
Non- Convertible Preferred Amount; provided, further, that with respect to any
change that will adversely affect only the rights of Holders of the outstanding
Convertible Preferred Amount or that will disadvantage such Holders vis-a-vis
the Holders of the outstanding Non-Convertible Preferred Amount, this Amended
and Restated Preferred Securities Guarantee may only be amended with the
approval of the Holders of at least a Majority in liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of the outstanding Non-Convertible Preferred Amount.
The provisions of Section 12.2 of the Amended and Restated Declaration with
respect to meetings of Holders apply to the giving of such approval.
936489.4
18
SECTION 9.3. Notices.
All notices provided for in this Amended and Restated Preferred
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx,
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
Capital Trust, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
(c) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4. Benefit.
This Amended and Restated Preferred Securities Guarantee is solely for
the benefit of the Holders of the Preferred Securities and, subject to Section
3.1(a), is not separately transferable from the Preferred Securities.
SECTION 9.5. Governing Law.
THIS AMENDED AND RESTATED PREFERRED SECURITIES SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
936489.4
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THIS AMENDED AND RESTATED PREFERRED SECURITIES GUARANTEE AGREEMENT is
executed as of the day and year first above written.
CAPITAL TRUST, INC., as Guarantor
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Preferred Guarantee Trustee
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
936489.4
