PLEDGE, SECURITY AGREEMENT AND ACCOUNT CONTROL AGREEMENT
Exhibit 4.3
PLEDGE, SECURITY AGREEMENT AND ACCOUNT CONTROL AGREEMENT
THIS PLEDGE, SECURITY AGREEMENT AND ACCOUNT CONTROL AGREEMENT (this “Agreement”) is entered
into as of April 30, 2009, by NEWCASTLE INVESTMENT CORP., a Maryland corporation (the “Company”),
NIC TP LLC, a Delaware limited liability company (the “Pledgor”), THE BANK OF NEW YORK MELLON TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association (the “Bank”) and THE BANK OF NEW YORK
MELLON TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, in its capacity as
trustee for the benefit of the Holders (as defined below) from time to time under the Indenture
referred to below (together with its successors and assigns, the “Trustee”).
RECITALS
WHEREAS, the Company and the Trustee are parties to that certain Junior Subordinated Indenture
dated as of April 30, 2009 with respect to the Company’s Junior Subordinated Notes due 2035 (the
“Securities”) (as the same may be amended, restated, supplemented or replaced from time to time,
the “Indenture”). Capitalized terms used herein and not defined shall have the meanings ascribed to
them in the Indenture.
WHEREAS, pursuant to Section 10.5 of the Indenture, the Company has agreed to enter into this
Agreement in order to pledge to the Trustee the Collateral (as defined below) and to grant in favor
of the Trustee a security interest in the Collateral, and to perfect the Trustee’s security
interest in the Collateral Account (as defined below).
WHEREAS, the Pledgor is a special purpose, wholly owned subsidiary of the Company.
WHEREAS, the Pledgor maintains that certain account no. 76148, entitled “NEWCASTLE NIC TP
CUSTODY” with the Bank (the “Collateral Account”) pursuant to a custodial agreement between the
Bank and the Pledgor dated as of April 30, 2009 (the “Account Agreement”), a copy of which is
attached hereto as Exhibit A, into which certain funds shall be deposited as provided
herein and the Indenture.
WHEREAS, the Trustee, the Pledgor, the Company and the Bank have agreed to enter into this
Agreement so as to pledge to and grant unto the Trustee, for the benefit of the Holders (defined
below), the Collateral and perfect the Trustee’s security interest in the Collateral Account, and
the Company has, additionally, entered into this Agreement for the purpose of confirming certain
obligations of the Company to the Bank and the Trustee in connection with the Pledgor’s pledge and
other agreements contained herein.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual covenants and promises, the parties hereto
agree as follows:
| 1. | Definitions. As used in this Agreement, the following terms have the meaning
specified below: |
“Business Day” shall mean any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in the City of New York are authorized or required by law or executive
order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee is
closed for business.
“Collateral” shall mean, collectively, (i) the Collateral Account; together with all funds
credited and on deposit in the Collateral Account; and (ii) any and all proceeds of any of
the foregoing whether now owned and existing or hereafter acquired or arising including,
without limitation, proceeds received upon the sale, exchange or other disposition of any of
the foregoing.
“Event of Default” shall mean an event of default under the Indenture.
“Holders” shall mean the holders of the outstanding Securities.
“Interest” shall have the meaning given to such term in Section 2(d).
“Majority Holders” shall mean Holders of a majority in aggregate principal amount of the
outstanding Securities.
“Participation Interest” shall mean that certain A-4 Participation Interest in the amount of
$23,125,000 in that certain Mezzanine Loan (the “Mezzanine Loan”) in the maximum principal
amount of $130,000,000 made by Fortress Credit Corp. as of February 7, 2005 to 401 Mezz
Venture LLC, a Delaware limited liability company, the owner of one hundred percent (100%)
of the ownership interest in 401 North Wabash Venture LLC, a Delaware limited liability
company, the owner of certain property known as the Xxxxx International Hotel and Tower
Chicago (the “Xxxxx Property”).
“Person” shall mean a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability company,
trust, unincorporated association, government or any agency or political subdivision
thereof, or any other entity of whatever nature.
“Participation Proceeds” shall mean all of the Pledgor’s right, title and interest in, to
and under all payments, repayments, prepayments (including, but not limited to, exit fees,
termination fees, equity kickers, defeasance collateral and the like), proceeds,
distributions, cash, instruments and other property (other than the Participation Interest
itself), collateral and other amounts from time-to-time received, or receivable in respect
of the Mezzanine Loan, the Participation Interest, the Xxxxx Property, or under the
Participation Agreement.
“Securities” shall mean the “Securities,” as defined in the Indenture.
“Xxxxx Property” shall have the meaning set forth in the definition of Participation
Interest.
In addition, the term “proceeds” shall have the meaning set forth in the Uniform Commercial
Code as in effect in the State of New York (the “UCC”). In the event that the UCC is
revised subsequent to the date hereof, all references herein to the UCC shall be deemed to
be references to such revision and the corresponding successor provisions and requirements.
| 2. | Characterization of Collateral Account; Deposits to Collateral Account; Creation of
Securities Account. |
| (a) | The Collateral Account is and shall be treated as a “deposit account” as such
term is defined in Section 9-102(a)(29) of the UCC. Cash shall be deposited and
maintained in the Collateral Account. |
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| (b) | Pledgor shall deposit all Participation Proceeds and all cash and instruments
received or distributed in respect of the Participation Interest and any other cash
Collateral into the Collateral Account within two (2) Business Days after receipt of
such amounts. |
| (c) | Pledgor agrees that upon its receipt of any item of property other than cash
(whether investment property, financial assets, securities, instruments, or other
property) in respect of the Participation Interest, it shall promptly create a
securities account, transfer such property to such securities account, and grant a
first priority security interest in such securities account to the Trustee on behalf of
the Holders, on substantially the same terms as agreed to herein with respect to the
Collateral and the Collateral Account. |
| (d) | Notwithstanding anything to the contrary in this Agreement or the Pledge and
Security Agreement, dated the date hereof by and between Newcastle Investment Corp., a
Maryland corporation, and the Trustee, so long as no Event of Default has occurred,
Pledgor shall be entitled to receive any and all interest accruing and on deposit in
the Collateral Account with respect amounts in the Collateral Account, if any,
including any interest paid or accrued upon such Interest (“Interest”), and such
interest shall not be deemed to be Collateral or subject to any lien or other
restriction granted pursuant to this Agreement. So long as no Event of Default has
occurred, Bank shall distribute such Interest amount to the Pledgor quarterly on each
of January 30, April 30, July 30 and October 30 of each year. Trustee agrees that all
funds distributed from the Collateral Account are automatically released from any
security interest of the Trustee in such funds. |
| (e) | Pledgor represents and warrants as of the date hereof and covenants that
Pledgor owns the Participation Interest and has right and title to the Participation
Proceeds, free and clear of all pledges, liens, hypothecations, security interests,
charges, options or other encumbrances whatsoever, except the lien and security
interest created by this Agreement and any related financing statements. |
| 3. | Pledge; Grant of Security Interest and Agreement for Control. |
| (a) | The Pledgor hereby pledges and grants to the Trustee, as collateral security
for the amounts now or hereafter to become due with respect to the Securities, a first
priority security interest in all of the Pledgor’s right, title and interest in and to
the Collateral, whether now owned by the Pledgor or hereafter acquired and whether now
existing or hereafter coming into existence, and the Bank hereby acknowledges the
security interest granted to the Trustee herein. |
| (b) | The Pledgor, the Company and the Bank acknowledge and agree that all Collateral
on deposit in the account is subject to the sole dominion, control and discretion of
the Trustee, its authorized agents or designees, subject to the terms of this
Agreement. |
| (c) | The Bank acknowledges that the Trustee shall have, in addition to the rights
and remedies set forth herein and in the Indenture, all of the rights and remedies
available to a secured party under the UCC, as if such rights and remedies were fully
set forth herein. |
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| (d) | At all times, the Bank is authorized by the Pledgor, and the Bank agrees, to
comply with (i) all instructions originated by the Trustee directing disposition of
funds in the Account without the consent of the Pledgor or any other Person and (ii)
all other directions, requests or instructions from the Trustee regarding disposition
and/or delivery of any of
the Collateral, without the consent or direction from the Pledgor or any other
Person (including, without limitation, the Company). The Trustee hereby agrees with
the Pledgor and the Company that it shall not deliver instructions directing
disposition of the funds in the Collateral Account except during such time that an
Event of Default shall have occurred and be continuing under the Indenture. The
foregoing sentence is solely an agreement among the Trustee, the Pledgor and the
Company; therefore, such provision (i) in no way limits or modifies the Bank’s
obligations under this Section 3 and (ii) imposes no duty or obligation on the Bank
to investigate or inquire of any party whether and Event of Default or other
condition exists under the Indenture or any other agreement between the Pledgor
and/or the Company and the Trustee. |
| (e) | The Bank hereby acknowledges that, except, as otherwise provided herein with
respect to Interest to be disbursed to the Company, until such time as the Bank
receives written instructions from the Trustee to the contrary, the Bank shall:
(i) make any payments and distributions from the Collateral Account to such account as
shall be directed by the Trustee, (ii) comply with the instructions of the Trustee
without any further consent from the Pledgor or any other Person (including, without
limitation, the Company) in respect of the Collateral and (iii) except as set forth in
this Section 3(e), not take any other action with respect to the Collateral,
effectuating any settlements with respect to any Collateral (provided that the
foregoing shall not prohibit deposits of Collateral into the Collateral Account where
settlement has been effectuated from funds other than the Collateral), advancing funds
to any Person, transferring or releasing any Collateral, releasing interest, dividends
or distributions, or retaining or setting off amounts due to the Bank against the
Collateral (except as explicitly provided in Section 5(d) hereof). |
| (f) | The Pledgor shall have the right to give instructions directing the disposition
of funds in the Collateral Account so long as no Event of Default has occurred and it
continuing and such instructions are only with respect to an amount not in excess of
the total amount of Interest credited to the Collateral Account and not previously
withdrawn. |
| 4. | Rights With Respect to the Collateral. Other than the Trustee, neither the Pledgor
nor any other Person (including, without limitation, the Company) shall have any authority
whatsoever to sell, transfer, pledge, trade, deposit, withdraw, direct the disposition of or
otherwise handle the Collateral Account (subject to Section 3(f)) or, except as otherwise
expressly permitted under the Indenture, any other Collateral. Neither the Pledgor nor any
Person (including, without limitation, the Company), other than the Trustee, may withdraw any
amounts from the Collateral Account (subject to Section 3(f)). The Bank will not comply with
any entitlement order or request to withdraw any amounts from the Collateral Account given by
any Person other than the Trustee (subject to Section 3(f)). |
| 5. | Bank’s Representations and Warranties. The Bank represents and warrants to the
Trustee that: |
| (a) | The Collateral Account is maintained with the Bank solely in the Pledgor’s
name. |
| (b) | The Bank has no knowledge of any claim to, security interest in or lien upon
any of the Collateral, except for the security interests granted in favor of the
Trustee as provided in this Agreement and security interests of Bank pursuant to the
Account Agreement. |
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| (c) | Any claim to, security interest in or lien upon or right of set-off against any
of the Collateral which the Bank now has or at any time hereafter acquires shall be
junior and subordinate to the security interests of the Trustee in the Collateral,
except that the Bank
will retain its prior lien on the funds in the Collateral Account to the extent
necessary to secure payment of ordinary fees with respect to the administration and
maintenance of the Collateral Account (which ordinary fees shall in no event include
acceptance fees, legal or counsel fees and charges, or fees for extraordinary
services or other services not covered by the annual fees for administration and
maintenance of the Collateral Account). |
| 6. | Agreements of Bank and Pledgor. The Bank and the Pledgor agree and the Company
acknowledges and agrees that: |
| (a) | The Bank shall flag its books, records and systems to reflect the Trustee’s
security interests in the Collateral and shall provide notice thereof to any Person
making inquiry as to the Pledgor’s accounts or, if applicable, the Company’s accounts
with the Bank to whom or which the Bank is legally required or permitted to provide
information. |
| (b) | The Bank shall send copies of monthly statements and advices, and all other
statements and notices relating to the Collateral Account simultaneously to the Pledgor
and the Trustee. |
| (c) | The Bank shall promptly notify the Trustee if, to the actual knowledge of the
Bank, any other Person (including, without limitation, the Company) asserts any claim
to, security interest in or lien upon or right of set-off against any of the
Collateral, and the Bank has not and shall not enter into any control, custodial or
other similar agreement with any such Person (including, without limitation, the
Company) that would create or acknowledge the existence of any other claim, security
interest or lien upon or right of set-off against any of the Collateral. |
| (d) | Without the Trustee’s prior written consent, the Bank and the Pledgor shall not
amend, or modify the Account Agreement, other than amendments to reflect ordinary and
reasonable changes in the Bank’s fees and charges for handling the Collateral Account. |
| (e) | Neither the Bank nor the Pledgor shall terminate the Account Agreement without
giving thirty (30) calendar days’ prior written notice to the Trustee and the Majority
Holders. |
| 7. | Indemnity. The Pledgor and the Company shall jointly indemnify, defend and save
harmless the Bank and the Trustee from all claims, actions, suits, losses, damages, costs,
actual out-of-pocket expenses or liability of any nature and type (including the reasonable
fees and expenses of in-house or outside counsel) incurred by the Bank and the Trustee in any
action or proceeding between the Pledgor or the Trustee and the Bank arising out of or in
connection with (i) its execution or the performance of the terms of this Agreement, except to
the extent that any of the foregoing are due to the gross negligence or willful misconduct of
the Bank or the Trustee, as applicable, or either of their directors, officers, or employees,
or (ii) its following any instructions or other directions from the Trustee. Amounts payable
under this Section 7 shall be paid within three (3) Business Days of Bank’s demand in writing.
The parties hereto acknowledge that the foregoing indemnities shall survive the termination
of this Agreement. |
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| 8. | Trustee Appointed Attorney-in-Fact. The Pledgor hereby irrevocably constitutes and
appoints the Trustee as the Pledgor’s true and lawful attorney-in-fact, with full power of
substitution upon the occurrence of an Event of Default, to execute, acknowledge and deliver
any instruments, and to exercise and enforce every right, power, remedy, option and privilege
of the Pledgor with respect to the Collateral, and do in the name, place and stead of the
Pledgor, all such acts, things
and deeds for and on behalf of and in the name of the Pledgor, which the Pledgor could or
might do or which the Trustee may deem necessary or desirable to more fully vest in the
Trustee the rights and remedies provided for herein and to accomplish the purposes of this
Agreement and the Indenture. The foregoing powers of attorney are irrevocable and are
coupled with an interest. If the Pledgor fails to perform any agreement herein contained
and such failure shall continue for five (5) Business Days after written notice of such
failure is given to the Pledgor, the Trustee may perform or cause performance of any such
agreement, and any reasonable fees and expenses of the Trustee in connection therewith shall
be paid by the Pledgor. |
| 9. | Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
(WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLE OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW), THE LAWS OF THE STATE OF NEW YORK. THE PLEDGOR, THE COMPANY, THE
TRUSTEE AND THE BANK AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT SHALL BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE COUNTY,
CITY AND STATE OF NEW YORK OR IN THE CITY OF NEW YORK AND CONSENT TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH
PERSON IN THE MANNER AND AT THE ADDRESS SPECIFIED FOR NOTICES IN THIS AGREEMENT. EACH OF THE
PLEDGOR, THE COMPANY, THE TRUSTEE AND THE BANK HEREBY WAIVE ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF
THE UCC, THE STATE OF NEW YORK SHALL BE THE BANK’S JURISDICTION (WITHIN THE MEANING OF
SECTION 9-304 OF THE UCC). |
| 10. | Jury Trial. EACH OF THE PLEDGOR, THE COMPANY, THE TRUSTEE AND THE BANK, FOR ITSELF
AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER IT, HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE
MODIFICATION THEREOF, WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH OF THE
PLEDGOR, THE COMPANY, THE TRUSTEE AND THE BANK HEREBY AGREES AND CONSENTS THAT AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY. |
| 11. | Miscellaneous. |
| (a) | This Agreement shall not create any obligation or duty of the Bank except as
expressly set forth herein. |
| (b) | As to the matters the subject of this Agreement, in the event of any conflict
between the terms of this Agreement and the Account Agreement or any other agreement
between the Bank and the Pledgor, the Bank and/or the Company, the terms of this
Agreement shall control. |
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| (c) | All notices, requests, instructions and demands which any party is required or
may desire to give to any other party under any provision of this Agreement must be in
writing (unless otherwise specifically provided) and delivered to each party at the
address or facsimile number set forth below, or to such other address or facsimile
number as any party may designate by written notice to all other parties. Each such
notice, request and demand shall be deemed given or made as follows: (i) if sent by
hand delivery, upon delivery; (ii) if sent by facsimile, upon receipt; and (iii) if
sent by mail, return receipt requested, upon the date of receipt, to: |
Trustee:
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION |
|
| 000 Xxxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxxxxxx, Xxxxx 00000 | ||
| Attention: Global Corporate Trust — Newcastle Investment Corp. | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Pledgor:
|
NIC TP LLC | |
| c/o Newcastle Investment Corp. | ||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attn: Xxxxx Xxxx | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Company:
|
NEWCASTLE INVESTMENT CORP. | |
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attn: Xxxxx Xxxx | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Bank:
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION |
|
| 000 Xxxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxxxxxx, Xxxxx 00000 | ||
| Attention: Global Corporate Trust — Newcastle Investment Corp. | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Majority Holders:
|
Taberna Capital Management, LLC | |
| 000 Xxxx Xxxxxx — 11th Floor | ||
| New York, New York 10022 | ||
| Attn: Xxxxxxx Xxxxxx | ||
| Tel: (917) 322 — 6902 | ||
| Fax: (000) 000-0000 |
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| (d) | This Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, legal representatives, successors and assigns of the
parties; provided however, that the Bank may not assign its obligations hereunder
without the prior written consent of the Trustee and the Majority Holders. This
Agreement may be amended or modified only in writing signed by all parties hereto. |
| (e) | This Agreement shall terminate upon the earliest to occur of (i) the payment in
full of all amounts due on account of the Securities, and the Bank’s receipt of written
notice from the Trustee; (ii) any other termination of the Account Agreement agreed to
in writing in advance by the Trustee; (iii) the Bank’s delivery of all Collateral to
the Trustee or its designee in accordance with the written instructions of the Trustee;
and (iv) the Bank’s delivery of all Collateral to the Pledgor or its designee in
accordance with the written instructions of the Trustee. |
| (f) | This Agreement may be executed in counterparts, each of which shall be an
original and all of which when taken together shall constitute one binding Agreement. |
| 12. | No Third-Party Beneficiaries. This Agreement is being made solely for the benefit of
the Trustee, on behalf of the Holders, and no other Person shall, under any circumstances, be
deemed to be a third-party beneficiary under this Agreement (except as set forth in Section
7). Nothing contained in this Agreement shall be deemed to confer upon any Person other than
the Trustee, the Pledgor, the Company and the Bank any rights under, or any right to insist
upon or to enforce the performance or observance of any of the terms or provisions of, this
Agreement. |
| 13. | Trustee’s Rights. All of the Trustee’s rights set forth herein are and shall be for
the sole benefit of the Holders in accordance with the terms of the Indenture and shall be
exercised in accordance with the terms of the Indenture. |
| 14. | Event of Default. During the existence of an Event of Default under the Indenture,
or in the event of any default in the terms, provisions and agreements of Pledgor or the
Company hereunder (each of the foregoing, an “Event of Default”), the Trustee shall and is
hereby authorized to exercise all remedies under the Indenture, this Agreement and at law,
including, without limitation, to direct one or more sales of all or any portion of the
Collateral and/or to direct a release to the Trustee or the Holders of all or any portion of
the Collateral and all proceeds thereof. |
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| 15. | Limitation on Liability — Bank. The Bank shall not have any duties, obligations or
liabilities except those expressly set forth herein. Without limiting the generality of the
foregoing, the Bank shall not be subject to any fiduciary or other implied duties outside of
the exercise of due care and good faith, and the Bank shall not have any duty to take any
discretionary action or exercise any discretionary powers. The Bank shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing delivered to the Bank under or in
connection with this Agreement (whether delivered by telecopy, electronic mail, courier
service or otherwise) and believed by it to be genuine and to have been signed or sent by the
proper person. None of the Bank, or any officer, agent, stockholder, partner, member,
director or employee of the Bank shall have any liability, whether
direct or indirect and whether in contract, tort or otherwise (i) for any action taken or
omitted to be taken by any of them hereunder or in connection herewith unless such act or
omission was performed or omitted in bad faith, or constituted willful misfeasance, gross
negligence or reckless disregard of the Bank’s duties hereunder, or (ii) for any action
taken or omitted to be taken by the Bank at the express direction of the Trustee. With the
exception of this Agreement, the Bank is not responsible for or chargeable with knowledge of
any terms or conditions contained in any agreement referred to herein, and expressly
disclaims any responsibility for determining the existence, validity, enforceability or
perfection of any security interest granted to the Trustee or the adequacy or sufficiency of
the Collateral. Anything in this Agreement notwithstanding, in no event shall the Bank be
liable for special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Bank has been advised of such loss
or damage and regardless of the form of action. |
| 16. | Rights, Privileges and Immunities Incorporated. The rights, privileges, protections
and immunities of the Bank contained in the Account Agreement shall be incorporated into the
Agreement by reference as fully as if they were expressly contained herein. |
| 17. | Limitation on Liability — Trustee. |
| (a) | Subject to the terms of the Indenture, the Trustee will have no responsibility
under this Agreement other than to render the services called for hereunder in good
faith and without willful malfeasance, negligence or reckless disregard of its duties
hereunder. The Trustee may act or rely upon, and shall incur no liability to anyone
for acting or relying upon, any signature, instrument, statement, notice, resolution,
request, direction, consent, order, certificate, report, opinion, bond or other
document or paper (whether delivered by telecopy, electronic mail, courier service or
otherwise) reasonably believed by it to be genuine and reasonably believed by it to be
signed by the proper party or parties. Neither the Trustee nor any of its affiliates,
directors, officers, shareholders, agents or employees will be liable to the Bank, the
Pledgor, the Company or any Person affiliated with any of the foregoing, except by
reason of acts or omissions constituting bad faith, willful misfeasance, gross
negligence or reckless disregard of the Trustee’s duties hereunder. The Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Majority Holders relating to the time,
method or place of conducting any action or proceeding available to or required of the
Trustee hereunder. Anything in this Agreement notwithstanding, in no event shall the
Trustee be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been
advised of such loss or damage and regardless of the form of action. The rights,
privileges, protections and immunities of the Trustee contained in the Indenture shall
be incorporated into this Agreement by reference as fully as if they were expressly
contained herein. |
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| (b) | Each of the Trustee and the Securities Bank may accept and act upon
instructions or directions pursuant to this Agreement sent by unsecured email,
facsimile transmission or other similar unsecured electronic methods; provided,
however, that any Person giving such instructions or directions shall deliver to the
Trustee and the Securities Bank an incumbency certificate listing such designated
persons, which incumbency certificate shall be amended whenever a person is to be added
or deleted from such certificate. If such Person elects to give the Trustee or the
Securities Bank email or facsimile instructions (or instructions by a similar
electronic method) and the Trustee or the Securities Bank in its discretion elects to
act upon such instructions, the Trustee’s (or, as
applicable, the Securities Bank’s) understanding of such instructions shall be
deemed controlling. The Trustee and the Securities Bank shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Trustee’s reliance
upon and compliance with such instructions notwithstanding such instructions
conflict or are inconsistent with a subsequent written instruction. Each Person
providing instructions or directions to the Trustee or the Securities Bank hereunder
agrees to assume all risks arising out of the use of such electronic methods to
submit instructions and directions to the Trustee or the Securities Bank, including
without limitation the risk of the Trustee or the Securities Bank acting, in good
faith, on unauthorized instructions, and the risk of interception and misuse by
third parties. |
| (c) | Each of the Trustee and the Securities Bank may, but is not required to, rely
upon and comply with instructions and directions sent by email or facsimile (or any
other reasonable means of communication) by persons believed by the Trustee or the
Securities Bank in good faith to be authorized to provide such instructions or
direction; provided, however, that the Trustee and the Securities Bank may require such
additional evidence, confirmation or certification from any such party or parties as
the Trustee or the Securities Bank, in its reasonable discretion, deems necessary or
advisable before acting or refraining from acting upon any such instruction or
direction. |
| 18. | Termination. Subject to Section 7, this Agreement shall terminate and be of no
further effect immediately upon the release of the Collateral by the Trustee pursuant to
Section 10.5(c) of the Indenture. |
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above.
| BANK: THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association |
||||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE
PAGE TO PLEDGE, SECURITY AGREEMENT AND ACCOUNT CONTROL AGREEMENT
| PLEDGOR: NIC TP LLC, a Delaware limited liability company |
||||
| By | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
SIGNATURE
PAGE TO PLEDGE, SECURITY AGREEMENT AND ACCOUNT CONTROL AGREEMENT
| COMPANY: NEWCASTLE INVESTMENT CORP. a Maryland corporation |
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| By | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
SIGNATURE
PAGE TO PLEDGE, SECURITY AGREEMENT AND ACCOUNT CONTROL AGREEMENT
| TRUSTEE: THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association as trustee for the benefit of the Holders from time to time under the Indenture |
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| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President Address: 000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 | |||
| Address: | 000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 | |||
SIGNATURE
PAGE TO PLEDGE, SECURITY AGREEMENT AND ACCOUNT CONTROL AGREEMENT
Exhibit A
Account Agreement
A - 1
