Contract
EXHIBIT
4.1
SECOND
SUPPLEMENTAL INDENTURE dated as of May 14, 2007 (this “Second
Supplemental Indenture”)
by and
among FF-TSY HOLDING COMPANY II, LLC, a Delaware limited liability company
(the
“Company”),
as
issuer, FF-TSY HOLDING COMPANY II, INC., a Delaware corporation, (the
“Co-Issuer”),
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“GECC”),
as
guarantor, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as trustee (the
“Trustee”).
Capitalized terms used in this Second Supplemental Indenture but not defined
herein have the meanings given to such terms in the Indenture (as defined
below).
WITNESSETH:
WHEREAS,
Trustreet Properties, Inc., a Maryland corporation (“Trustreet”),
heretofore executed and delivered an indenture dated as of March 23, 2005
between Trustreet and the Trustee (the “Original Indenture”),
pursuant to which Trustreet issued $300,000,000 aggregate principal amount
of
71/2%
Senior
Notes due 2015 (the “Notes”);
WHEREAS,
Trustreet and the Company entered into an Assignment and Assumption Agreement
dated as of February 26, 2007, pursuant to which Trustreet assigned on such
date
all of its assets, rights and properties to the Company and the Company agreed
to assume, perform and, in due course, satisfy and discharge all obligations,
debts and liabilities of Trustreet (the “Assignment
and Assumption”);
WHEREAS,
in
connection with the Assignment and Assumption and as required by the Original
Indenture, Trustreet, the Company, the Co-Issuer and the Trustee entered into
a
Supplemental Indenture dated as of February 26, 2007 (the “First
Supplemental Indenture”
and,
together with the Original Indenture, the “Indenture”)
which
amended the Original Indenture and provided for the express assumption by the
Company of all obligations of Trustreet under the Original Indenture and the
Notes;
WHEREAS,
Section
9.01(a)(vi) of the Indenture provides that, without the consent of any Holder
of
a Note, the Company and the Trustee may amend or supplement the Indenture to
make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not materially adversely affect the legal rights
under the Indenture of any such Holder;
WHEREAS,
in
accordance with Section 9.01(b) of the Indenture, the Company has delivered
to
the Trustee its request, accompanied by a Board Resolution authorizing the
Company’s execution of this Second Supplemental Indenture, that the Trustee duly
execute and deliver this Second Supplemental Indenture;
WHEREAS,
in
accordance with Sections 7.02(b) and 11.04 of the Indenture, the Company has
furnished to the Trustee an Officers’ Certificate and Opinion of Counsel, in
each case in form and substance satisfactory to the Trustee, stating that,
in
the opinion of the Company and such counsel, respectively, all conditions
precedent to the effectiveness of this Second Supplemental Indenture have been
satisfied; and
WHEREAS,
all
other acts and proceedings required by law, by the Indenture and by the
organizational documents of the Company, to make this Second Supplemental
Indenture a valid and binding agreement for the purposes expressed herein,
in
accordance with its terms, have been duly done and performed;
NOW,
THEREFORE,
in
consideration of the premises and the covenants and agreements contained herein,
and for other good and valuable consideration the receipt and sufficiency of
which are hereby mutually acknowledged, and for the equal and proportionate
benefit of the Holders of Notes, the Company, the Co-Issuer, GECC and the
Trustee hereby agree as follows:
ARTICLE
ONE
AMENDMENTS
TO THE INDENTURE
Section
1.1. Amendments
to Article One.
(a)
Section 1.01 of the Original Indenture is hereby further amended to insert
therein the following new definitions in alphabetical order:
“GECC”
means
General Electric Capital Corporation, a Delaware corporation.
“Second
Supplemental Indenture”
means
that certain Second Supplemental Indenture to the Indenture dated as of May
14,
2007 among the Company, the Co-Issuer, GECC and the Trustee.
Section
1.2. Amendments
to Article Four.
(a)
Section 4.03(a) of the Indenture is hereby amended by adding the following
sentences after the penultimate sentence of such Section 4.03(a):
“Notwithstanding
the foregoing, the Company shall be deemed to have complied with the
requirements of the first two sentences of this Section 4.03(a) by the
filing by GECC of such reports that GECC is required to file with the SEC
pursuant to such Section 13(a) or 15(d);
provided, that, (i) GECC is subject to Section 13(a) or 15(d) of the
Exchange Act, (ii) the Company is not required by Sections 13(a) or 15(d)
of the Exchange Act to file reports with the SEC, (iii) the Guarantee provided
by GECC under Article Twelve of this Indenture remains in full force and effect,
and (iv) GECC’s senior unsecured debt maintains a rating by S&P of A+
(or the equivalent) or higher and a rating by Moody’s of Aa1 (or the equivalent)
or higher, provided,
with
respect to clause (iv), in each case, such ratings are publicly available,
and
provided further,
with
respect to clause (iv), that in the event S&P or Xxxxx’x is no longer in
existence for purposes of determining such rating, such organization may be
replaced by a nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) designated by the Company, notice of
which
shall be given to the Trustee. At any time that the requirements of the first
two sentences of this Section 4.03(a) are complied with by the filing by GECC
of
such reports that GECC is required to file with the SEC pursuant to such Section
13(a) or 15(d), all references in this Indenture and the related documents
to a
balance sheet, reports or other information filed with the SEC or provided
to
the Trustee pursuant to this Section 4.03 shall instead be references to an
available internal consolidated balance sheet of the Company and its Restricted
Subsidiaries or available internal financial statements of the Company,
respectively.”
(b)
Section 4.03(b) of the Indenture is hereby amended by inserting “During any
period for which the Company’s obligations under Section 4.03(a) may not be
satisfied pursuant to the penultimate sentence thereof, ” in front of the word
“If” at the beginning thereof and replacing the word “If” at the beginning
thereof with the word “if”.
Section
1.3. Amendments
to Article Eleven.
Section
11.02(a) of the Original Indenture is hereby amended and restated in its
entirety to read as follows:
(a)
Any
notice or communication by the Company, GECC or the Trustee to the other is
duly
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), facsimile or overnight
air
courier guaranteeing next delivery, to the others’ address:
If
to the
Company and/or GECC:
FF-TSY
Holding Company II, LLC
c/o
General Electric Capital Corporation
000
Xxxx
Xxxxx Xxxx
Xxxxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attention: Senior Vice President - Corporate Treasury and
Global Funding
Operation
with
a
copy to:
Xxxxx
& Xxxxxxx LLP
000
00xx
Xxxxxx,
X.X.
Xxxxxxxxxx,
X.X. 00000
Facsimile
No.: (000) 000-0000
Attn:
J.
Xxxxxx Xxxxxxx, Xx., Esq.
Xxxxx X. Xxxxxxx, Esq.
If
to the
Trustee:
Xxxxx
Fargo Bank, National Association
Sixth & Marquette; X0000-000
Xxxxxxxxxxx, XX 00000
Facsimile
No.: (000) 000-0000
Attn: Corporate Trust Services - FF-TSY Administrator
Section
1.4. Addition
of New Article Twelve.
A new
Article Twelve is hereby added to the Indenture, to read in its entirety as
follows:
“ARTICLE
TWELVE
GECC
GUARANTEE
Section
12.01 Guarantee.
(a)
By
its execution of the Second Supplemental Indenture, GECC absolutely,
unconditionally and irrevocably Guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the enforceability of this Indenture and the Notes
or the obligations of the Company under the Indenture and the Notes, the due
and
punctual payment of the principal and interest and all other amounts due under
the Indenture and the Notes when the same shall become due and payable, whether
at maturity, pursuant to mandatory prepayments, by acceleration or otherwise,
in
each case after any applicable grace periods or notice requirements, according
to the terms of the Indenture and the Notes. The obligations of GECC hereunder
shall be unsecured and shall rank pari passu with all of GECC’s other unsecured
and unsubordinated Indebtedness. GECC hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity
or
enforceability of this Indenture and the Notes, any change in or amendment
thereto, the absence of any action to enforce the same, any waiver or consent
by
the Trustee or Holders of the Notes with respect to any provision thereof,
the
recovery of any judgment against the Company or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge or defense of GECC with respect to its obligations hereunder;
provided,
however,
that
nothing contained herein shall be deemed to be a waiver by GECC of presentment
or demand of payment or notice to GECC with respect to the Notes and the
obligations evidenced thereby or hereby. GECC
waives any right of set-off or counterclaim it may have against Holders of
Notes
arising from any other relationship between any such Holder, as an obligee,
and
the Company, as an obligor. GECC covenants that its obligations hereunder will
not be discharged except by complete performance of the obligations contained
in
this Indenture and the Notes.
(b)
GECC
shall be subrogated to all rights of Holders of the Notes in respect of any
amounts paid by GECC pursuant to the provisions of this Section 12.01;
provided,
however,
that
GECC shall be entitled to enforce, or to receive any payments arising out of
or
based upon, such right of subrogation only after the principal of and interest
on the Notes and all other amounts owed to Holders of Notes under this Indenture
and the Notes have been paid in full.
(c)
The
Guarantee of the Notes by GECC provided for herein shall continue to be
effective or reinstated, as the case may be, if at any time any payment of
principal of or interest on the Notes or any other amounts owed to the Holders
of Notes under this Indenture and the Notes is rescinded or must otherwise
be
returned by such Holders upon the insolvency, bankruptcy or reorganization
by
GECC, the Company or otherwise, all as though such payment had not been made.”
ARTICLE
II
MISCELLANEOUS
Section
2.1. Representations
and Warranties of GECC.
GECC
represents and warrants to the Trustee that (i) it is a Delaware corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and (ii) the execution delivery and performance by it of
this
Second Supplemental Indenture have been authorized and approved by all corporate
action on its part.
Section
2.2. Execution
as Supplemental Indenture.
This
Second Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Indenture and, as provided in the Indenture, this Second
Supplemental Indenture forms a part thereof. Except as herein expressly
otherwise defined, the use of the terms and expressions herein is in accordance
with the definitions, uses and constructions contained in the Indenture.
Section
2.3.
Ratification
of Original Indenture.
The
Indenture, as amended and supplemented by this Second Supplemental Indenture,
is
in all respects ratified and confirmed and shall continue in full force and
effect in accordance with the provisions thereof.
Section
2.4. Provisions
Binding on Successors.
All
agreements contained in this Second Supplemental Indenture made by the Company,
the Co-Issuer and GECC shall bind their respective successors and assigns
whether so expressed or not.
Section
2.5. No
Recourse Against Others.
Pursuant to Section 11.07 of the Indenture, no incorporator, shareholder,
officer, director, employee or controlling person of GECC shall have any
liability for any obligations of GECC under the Indenture and the Notes or
for
any claim based on, in respect of, or by reason of, such obligations and their
creation.
Section
2.6. Governing
Law.
THIS
SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK.
Section
2.7. Severability.
In case
any provision in this Second Supplemental Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions hereof and thereof shall not in any way be affected
or
impaired thereby.
Section
2.8. Counterparts
and Method of Execution.
This
Second Supplemental Indenture may be executed in any number of counterparts,
each of which shall be an original but such counterparts shall together
constitute but one and the same.
Section
2.9. Titles
and Headings.
Section
titles and headings are for descriptive purposes only and shall not control
or
alter the meaning of this Second Supplemental Indenture.
Section
2.10. Trustee.
The
Trustee makes no representations as to the validity or sufficiency of this
Second Supplemental Indenture. The recitals and statements herein are deemed
to
be those of the Company, the Co-Issuer and GECC and not of the Trustee.
Section
2.11. Trust
Indenture Act Controls.
If any
provision of this Second Supplemental Indenture limits, qualifies or conflicts
with another provision of this Second Supplemental Indenture or the Indenture
that is required to be included herein or in the Original Indenture by the
Trust
Indenture Act of 1939, as amended (the “Act”),
as in
force on the date this Second Supplemental Indenture is executed, the provision
required by the Act shall control.
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be executed as of the day and year first above
written.
FF-TSY
HOLDING COMPANY II, LLC
By:
/s/
Xxxxxx X. Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title:
President
FF-TSY
HOLDING COMPANY II, INC.
By:
/s/
Xxxxxx X. Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title:
President
GENERAL
ELECTRIC CAPITAL CORPORATION
By:
/s/
Xxxxxx X. Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title:
Vice President
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
