Exhibit 4.2
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CAPITAL TRUST, INC.
TO
WILMINGTON TRUST COMPANY
Trustee
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FIRST SUPPLEMENTAL
INDENTURE
Dated as of January 28, 1999
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798885.2
FIRST SUPPLEMENTAL INDENTURE, dated as of January 28, 1999, between
Capital Trust, Inc., a Maryland corporation (the "Company"), having its
principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Wilmington
Trust Company, a banking corporation duly organized and existing under the laws
of the State of Delaware, as trustee under the Indenture referred to below
(herein called the "Trustee").
RECITALS
WHEREAS, Capital Trust, a California business trust ("Capital Trust"),
has heretofore executed and delivered to the Trustee a certain indenture, dated
as of July 28, 1998 (the "Indenture"), pursuant to which convertible debentures
designated as the 8.25% Step Up Convertible Junior Subordinated Debentures of
Capital Trust (herein called the "Securities") were issued. All terms used in
this First Supplemental Indenture which are defined in the Indenture shall have
the meanings assigned to them in the Indenture;
WHEREAS, Capital Trust entered into an agreement and plan of merger,
dated as of November 12, 1998, by and among Capital Trust, Captrust Limited
Partnership, a Maryland limited partnership (the "Limited Partnership"), and the
Company (the "Merger Agreement"), whereby (i) Capital Trust will merge with and
into the Limited Partnership (the "Limited Partnership Merger"), with the result
that the Limited Partnership will be the surviving entity in the Limited
Partnership Merger, and (ii) the Limited Partnership will merge with and into
the Company (the "Company Merger," and together with the Limited Partnership
Merger, the "Mergers"), with the result that the Company will be the surviving
entity in the Company Merger.
WHEREAS, Section 9.1 of the Indenture provides that Capital Trust shall
not enter the Mergers unless the Company assumes all the obligations of Capital
Trust under the Securities and the Indenture pursuant to a supplemental
indenture;
WHEREAS, Section 8.1 of the Indenture provides that without the consent
of the Holders of any of the Securities at the time Outstanding, the Company,
when authorized by a resolution of its Board of Directors, and the Trustee may
enter into an indenture supplemental to the Indenture to evidence the succession
of another corporation to Capital Trust and the assumption by the successor
corporation of the covenants, agreements and obligations of Capital Trust under
the Securities and under the Indenture in the case of a merger involving Capital
Trust pursuant to Article 9 of the Indenture;
WHEREAS, the Company pursuant to the foregoing authority, proposes in
and by this First Supplemental Indenture to amend the Indenture upon the
consummation of the Mergers to reflect the assumption by the Company of all the
obligations of Capital Trust under the Securities and the Indenture; and
798885.2
WHEREAS, all things necessary to make this First Supplemental Indenture
a valid agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities upon the
consummation of the Mergers as follows:
ARTICLE ONE
PROVISIONS OF
GENERAL APPLICATION
SECTION 1.1 Assumption of Obligations. The Company assumes the due and
punctual payment of the principal of, premium, if any, and interest (including
Additional Sums and Compound Interest) on all of the Securities according to
their tenor, and the due and punctual performance and observance of all of the
covenants, agreements and conditions of the Indenture to be performed or
observed by Capital Trust.
ARTICLE TWO
MISCELLANEOUS
SECTION 2.1 Incorporation of Indenture. All the provisions of this
First Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture; and the Indenture, as supplemented and amended by this
First Supplemental Indenture, shall be read, taken and construed as one and the
same instrument.
SECTION 2.2 Application of First Supplemental Indenture. The provisions
and benefit of this First Supplemental Indenture shall be effective with respect
to Securities outstanding prior to and after the execution hereof.
SECTION 2.3 Headings. The headings of the Articles and Sections of the
First Supplemental Indenture are inserted for convenience of reference; and
shall not be deemed to be a part thereof.
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SECTION 2.4 Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 2.5 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this First Supplemental Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
SECTION 2.6 Successors and Assigns. All covenants and agreements in
this First Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 2.7 Separability Clause. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.8 Governing Law. This agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
Attest: CAPITAL TRUST, INC.
/s/ Xxxxxx X. Xxxxxxx III By: /s/ Xxxx X. Xxxxx
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Xxxxxx X. Xxxxxxx III, Name: Xxxx X. Xxxxx
Secretary Title: President
Attest: WILMINGTON TRUST COMPANY,
as Trustee
/s/ I.A. Lennon By: /s/ Xxxx X. St. Xxxxx
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Name: Xxxx X. St. Amand
Title: Assistant Vice President
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XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of January, 1999, before me personally came Xxxx X.
Xxxxx, to me known, who, being by me duly sworn, did depose and say that he is
President of CAPITAL TRUST, INC., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
/s/ Xxxxx X. Xxxxxxx
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Notary Public
[NOTARIAL SEAL]
My Commission Expires: September 21, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF NEW CASTLE )
On the 27th day of January, 1999, before me personally came Xxxx X. St.
Xxxxx, to me known, who, being by me duly sworn, did depose and say that she is
an Assistant Vice President of WILMINGTON TRUST COMPANY, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Xxxxxxxx X. Xxxx
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Notary Public
[NOTARIAL SEAL]
My Commission Expires: July 12, 1999
798885.2
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