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iSTAR FINANCIAL INC.
up to $500,000,000
8 3/4% SENIOR NOTES DUE 2008
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SUPPLEMENTAL INDENTURE
Dated as of August 16, 2001
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STATE STREET BANK AND
TRUST COMPANY, N.A.
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)...................................................................... 7.10
(a)(2)...................................................................... 7.10
(a)(3)...................................................................... N.A.
(a)(4)...................................................................... N.A.
(a)(5)...................................................................... 7.10
(b)......................................................................... 7.10
(c)......................................................................... N.A.
311 (a)......................................................................... 7.11
(b)......................................................................... 7.11
(c)......................................................................... N.A.
312 (a)......................................................................... 2.05
(b)......................................................................... 11.03
(c)......................................................................... 11.03
313 (a)......................................................................... 7.06
(b)(2)...................................................................... 7.07
(c)......................................................................... 7.06;11.02
(d)......................................................................... 7.06
314 (a)......................................................................... 4.03;11.02
(c)(1)...................................................................... 11.04
(c)(2)...................................................................... 11.04
(c)(3)...................................................................... N.A.
(e)......................................................................... 11.05
(f)......................................................................... N.A.
315 (a)......................................................................... 7.01
(b)......................................................................... 7.05,11.02
(c)......................................................................... 7.01
(d)......................................................................... 7.01
(e)......................................................................... 6.11
316 (a) (last sentence)......................................................... 2.09
(a)(1)(A)................................................................... 6.05
(a)(1)(B)................................................................... 6.04
(a)(2)...................................................................... N.A.
(b)......................................................................... 6.07
(c)......................................................................... 2.13
317 (a)(1)...................................................................... 6.08
(a)(2)...................................................................... 6.09
(b)......................................................................... 2.04
318 (a)......................................................................... 11.01
(b)......................................................................... N.A.
(c)......................................................................... 11.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
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ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.................................................................................. 1
Section 1.02. Other Definitions............................................................................18
Section 1.03. Incorporation by Reference of Trust Indenture Act............................................18
Section 1.04. Rules of Construction........................................................................18
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating..............................................................................19
Section 2.02. Execution and Authentication.................................................................19
Section 2.03. Registrar and Paying Agent...................................................................20
Section 2.04. Paying Agent to Hold Money in Trust..........................................................20
Section 2.05. Holder Lists.................................................................................21
Section 2.06. Transfer and Exchange........................................................................21
Section 2.07. Replacement Notes............................................................................24
Section 2.08. Outstanding Notes............................................................................25
Section 2.09. Treasury Notes...............................................................................25
Section 2.10. Temporary Notes..............................................................................25
Section 2.11. Cancellation.................................................................................25
Section 2.12. Defaulted Interest...........................................................................26
Section 2.13. Record Date..................................................................................26
Section 2.14. CUSIP Numbers................................................................................26
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee...........................................................................26
Section 3.02. Selection of Notes to Be Redeemed............................................................26
Section 3.03. Notice of Redemption.........................................................................27
Section 3.04. Effect of Notice of Redemption...............................................................28
Section 3.05. Deposit of Redemption Price..................................................................28
Section 3.06. Notes Redeemed in Part.......................................................................28
Section 3.07. Optional Redemption..........................................................................28
Section 3.08. Mandatory Redemption.........................................................................29
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.............................................................................29
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Section 4.02. Maintenance of Office or Agency..............................................................30
Section 4.03. Reports to Holders...........................................................................30
Section 4.04. Compliance Certificate.......................................................................31
Section 4.05. Taxes........................................................................................31
Section 4.06. Stay, Extension and Usury Laws...............................................................31
Section 4.07. Limitation on Restricted Payments............................................................31
Section 4.08. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries..............................................................................33
Section 4.09. Limitation on Incurrence of Additional Indebtedness..........................................34
Section 4.10. Limitation on Transactions with Affiliates...................................................35
Section 4.11. Limitation on Liens..........................................................................37
Section 4.12. Corporate Existence..........................................................................37
Section 4.13. Offer to Repurchase Upon Change of Control...................................................37
Section 4.14. Limitation on Preferred Stock of Subsidiaries................................................39
Section 4.15. Conduct of Business..........................................................................39
Section 4.16. Limitation of Guarantees by Subsidiaries.....................................................39
Section 4.17. Maintenance of Total Unencumbered Assets.....................................................40
Section 4.18. Termination of Certain Covenants In Event of Investment Grade Rating.........................40
Section 4.19. Maintenance of Properties; Books and Records; Compliance with Law............................40
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.....................................................41
Section 5.02. Successor Corporation Substituted............................................................42
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default............................................................................42
Section 6.02. Acceleration.................................................................................44
Section 6.03. Other Remedies...............................................................................45
Section 6.04. Waiver of Past Defaults......................................................................45
Section 6.05. Control by Majority..........................................................................45
Section 6.06. Limitation on Suits..........................................................................45
Section 6.07. Rights of Holders of Notes to Receive Payment................................................46
Section 6.08. Collection Suit by Trustee...................................................................46
Section 6.09. Trustee May File Proofs of Claim.............................................................46
Section 6.10. Priorities...................................................................................46
Section 6.11. Undertaking for Costs........................................................................47
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ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee............................................................................47
Section 7.02. Rights of Trustee............................................................................48
Section 7.03. Individual Rights of Trustee.................................................................49
Section 7.04. Trustee's Disclaimer.........................................................................49
Section 7.05. Notice of Defaults...........................................................................49
Section 7.06. Reports by Trustee...........................................................................49
Section 7.07. Compensation and Indemnity...................................................................50
Section 7.08. Replacement of Trustee.......................................................................50
Section 7.09. Successor Trustee by Merger, etc.............................................................51
Section 7.10. Eligibility; Disqualification................................................................51
Section 7.11. Preferential Collection of Claims............................................................52
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.....................................52
Section 8.02. Legal Defeasance and Discharge...............................................................52
Section 8.03. Covenant Defeasance..........................................................................52
Section 8.04. Conditions to Legal or Covenant Defeasance...................................................53
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions..................................................................54
Section 8.06. Repayment to Company.........................................................................54
Section 8.07. Reinstatement................................................................................55
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes..........................................................55
Section 9.02. With Consent of Holders of Notes.............................................................56
Section 9.03. Compliance with Trust Indenture Act..........................................................57
Section 9.04. Revocation and Effect of Consents............................................................57
Section 9.05. Notation on or Exchange of Notes.............................................................57
Section 9.06. Trustee to Sign Amendments, etc..............................................................58
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge...................................................................58
Section 10.02. Application of Trust Money...................................................................59
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ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.................................................................59
Section 11.02. Notices......................................................................................59
Section 11.03. Communication by Holders of Notes with Other Holders of Notes................................60
Section 11.04. Certificate and Opinion as to Conditions Precedent...........................................60
Section 11.05. Statements Required in Certificate or Opinion................................................61
Section 11.06. Rules by Trustee and Agents..................................................................61
Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders.....................61
Section 11.08. Governing Law................................................................................61
Section 11.09. No Adverse Interpretation of Other Agreements................................................61
Section 11.10. Successors...................................................................................61
Section 11.11. Severability.................................................................................62
Section 11.12. Counterpart Originals........................................................................62
Section 11.13. Table of Contents, Headings, etc.............................................................62
Section 11.14. Conflicts with Indenture.....................................................................62
EXHIBITS
Exhibit A FORM OF NOTE
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SUPPLEMENTAL INDENTURE dated as of August 16, 2001 between iStar
Financial Inc., a Maryland corporation (the "COMPANY"), and State Street Bank
and Trust Company, N.A., as trustee (the "TRUSTEE").
The Company has heretofore delivered to the Trustee an Indenture dated
as of February 5, 2001, a form of which has been filed with the Securities and
Exchange Commission under the Securities Act as an exhibit to the Company's
Registration Statement on Form S-3 (Registration No. 333-55396), providing for
the issuance from time to time of debt securities of the Company.
The Board of Directors of the Company has duly adopted resolutions
authorizing the Company to execute and deliver this Supplemental Indenture.
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and in each case whether or not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Subsidiary
of the Company or such acquisition, merger or consolidation.
"ADDITIONAL NOTES" means up to $150 million in aggregate principal
amount of Notes (other than the Initial Notes) issued under this Supplemental
Indenture in accordance with Section 2.02 and 4.09.
"AFFILIATE" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.
"ASSET ACQUISITION" means: (1) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or any Subsidiary of the Company, or
shall be merged with or into the Company or any Subsidiary of the Company; or
(2) the acquisition by the Company or any Subsidiary of the Company of the
assets of
any Person (other than a Subsidiary of the Company) that constitute all or
substantially all of the assets of such Person or comprises any division or line
of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any
Subsidiary of the Company (including any sale and leaseback transaction) to any
Person other than the Company or a Wholly Owned Subsidiary of the Company of:
(1) any Capital Stock of any Subsidiary of the Company; or
(2) any of the Company's or its Subsidiaries' other property
or assets other than sales of loan-related assets made in the ordinary
course of the Company's real estate lending business and other asset
sales made in the ordinary course of the Company's business.
"BANKRUPTCY LAW" means Title 11, United States Bankruptcy Code of 1978,
as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"BOARD OF DIRECTORS" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the City of New York
are authorized or obligated by law or executive order to close.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the obligations
of such Person under a lease that are required to be classified and accounted
for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CAPITAL STOCK" means:
(1) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person; and
(2) with respect to any Person that is not a corporation, any
and all partnership, membership or other equity interests of such
Person.
"CASH EQUIVALENTS" means:
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(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof;
(2) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state
or any public instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition, having one
of the two highest ratings obtainable from either S&P or Moody's;
(3) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia or any U.S. branch of a foreign
bank having at the date of acquisition thereof combined capital and
surplus of not less than $250.0 million;
(5) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (1)
above entered into with any bank meeting the qualifications specified
in clause (4) above; and
(6) investments in money market funds that invest
substantially all their assets in securities of the types described in
clauses (1) through (5) above.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events:
(1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any Person or group
of related Persons for purposes of Section 13(d) of the Exchange Act (a
"Group"), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Supplemental
Indenture) other than to the Permitted Holders;
(2) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of
the Company (whether or not otherwise in compliance with the provisions
of this Supplemental Indenture);
(3) any Person or Group (other than the Permitted Holders)
shall become the owner, directly or indirectly, beneficially or of
record, of shares representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of
the Company; PROVIDED, HOWEVER, that no Change of Control shall be
deemed to have occurred as a result of the sale or transfer by the
Permitted Holders of shares of Capital Stock of the Company
representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company
to a Person or Group,
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whether in one transaction or a series of related transactions, that
has an investment grade senior unsecured credit rating from both of
Moody's and S&P so long as the Company's senior unsecured ratings from
Moody's and S&P are the same or better immediately following such sale
or transfer as before such sale or transfer; or
(4) the replacement of a majority of the Board of Directors of
the Company over a two-year period from the directors who constituted
the Board of Directors of the Company at the beginning of such period,
and such replacement shall not have been approved by a vote of at least
a majority of the Board of Directors of the Company then still in
office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of
Directors was previously so approved.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
thereunder, in each case as in effect from time to time.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this Supplemental Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON STOCK" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"COMPANY" means iStar Financial Inc. and any and all successors thereto
that become a party to this Supplemental Indenture in accordance with its terms.
"CONSOLIDATED ADJUSTED EARNINGS" with respect to any Person, for any
period, means the Consolidated Net Income, less dividend payments on Preferred
Stock, plus depreciation and amortization (including the Company's share of
joint venture depreciation and amortization).
"CONSOLIDATED EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced
thereby:
(a) all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such
period (other than income taxes attributable to extraordinary
gains or losses and direct impairment charges or the reversal
of such charges on the Company's assets);
(b) Consolidated Interest Expense; and
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(c) depreciation and amortization;
all as determined on a consolidated basis for such Person and its Subsidiaries
in accordance with GAAP.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four Quarter Period") ending prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available (the "Transaction
Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to:
(1) the incurrence or repayment of any Indebtedness of such
Person or any of its Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of
the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital
purposes pursuant to working capital facilities, occurring during the
Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter
Period; and
(2) any asset sales or other dispositions or any asset
originations, asset purchases, Investments and Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to
the need to make such calculation as a result of such Person or one of
its Subsidiaries (including any Person who becomes a Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness and also including any Consolidated
EBITDA (including any pro forma expense and cost reductions calculated
on a basis consistent with Regulation S-X under the Exchange Act)
attributable to the assets which are originated or purchased, the
Investments that are made and the assets that are the subject of the
Asset Acquisition or asset sale or other disposition during the Four
Quarter Period) occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such asset sale or other disposition or
asset origination, asset purchase, Investment or Asset Acquisition
(including the incurrence, assumption or liability for any such
Acquired Indebtedness) occurred on the first day of the Four Quarter
Period. If such Person or any of its Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed Indebtedness.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person for any
period, the sum, without duplication, of:
(1) Consolidated Interest Expense; plus
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(2) the amount of all dividend payments on any series of
Preferred Stock of such Person and, to the extent permitted under this
Supplemental Indenture, its Subsidiaries (other than dividends paid in
Qualified Capital Stock) paid, accrued or scheduled to be paid or
accrued during such period.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the sum of, without duplication:
(1) the aggregate of the interest expense of such Person and
its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including without limitation: (a) any
amortization of debt discount; (b) the net costs under Interest Swap
Obligations; (c) all capitalized interest; and (d) the interest portion
of any deferred payment obligation; and
(2) to the extent not already included in clause (1), the
interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by such Person and its
Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
before the payment of dividends on Preferred Stock for such period on a
consolidated basis, determined in accordance with GAAP; PROVIDED that there
shall be excluded therefrom:
(1) after-tax gains and losses from Asset Sales or
abandonments or reserves relating thereto (including gains and losses
from the sale of corporate tenant lease assets);
(2) after-tax items classified as extraordinary gains or
losses and direct impairment charges or the reversal of such charges on
the Company's assets;
(3) the net income of any Person acquired in a "pooling of
interests" transaction accrued prior to the date it becomes a
Subsidiary of the referent Person or is merged or consolidated with the
referent Person or any Subsidiary of the referent Person;
(4) the net income (but not loss) of any Subsidiary of the
referent Person to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income is restricted
by a contract, operation of law or otherwise, except for such
restrictions permitted by clauses (f), (g) and (h) of Section 4.08
whether such permitted restrictions exist on the Issue Date or are
created thereafter;
(5) the net income or loss of any other Person, other than a
Consolidated Subsidiary of the referent Person, except:
(a) to the extent (in the case of net income) of cash
dividends or distributions paid to the referent Person, or to
a Wholly Owned Subsidiary of the referent
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Person (other than a Subsidiary described in clause (4)
above), by such other Person; or
(b) that the referent Person's share of any net
income or loss of such other Person under the equity method of
accounting for Affiliates shall not be excluded;
(6) any restoration to income of any contingency reserve of an
extraordinary, nonrecurring or unusual nature, except to the extent
that provision for such reserve was made out of Consolidated Net Income
accrued at any time following the Issue Date;
(7) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued);
and
(8) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets.
"CONSOLIDATED NET WORTH" of any Person means the consolidated
stockholders' equity of such Person, as of the end of the last completed fiscal
quarter ending on or prior to the date of the transaction giving rise to the
need to calculate Consolidated Net Worth determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person and interests in such Person's
Consolidated Subsidiaries not owned, directly or indirectly, by such Person.
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person, a
Subsidiary of such Person, the financial statements of which are consolidated
with the financial statements of such Person in accordance with GAAP.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 or such other address as to which the Trustee
may give notice to the Company.
"CURRENCY AGREEMENTS" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Subsidiary of the Company against fluctuations in currency
values.
"CUSTODIAN" means any custodian, receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06, in the form of
Exhibit A except that such Note shall not bear
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the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Supplemental Indenture.
"DISQUALIFIED CAPITAL STOCK" means that portion of any Capital Stock
that, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable at the option of the holder thereof), or upon
the happening of any event (other than an event which would constitute a Change
of Control), matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (except, in each case, upon the occurrence of a Change of Control) on or
prior to the final maturity date of the Notes.
"EQUITY OFFERING" means an underwritten public offering of Qualified
Capital Stock of the Company pursuant to a registration statement filed with the
Commission in accordance with the Securities Act or a private placement of
Qualified Capital Stock of the Company generating gross proceeds of at least
$25.0 million.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"EXISTING CREDIT AGREEMENTS" mean: (1) the Credit Agreement dated as of
July 26, 2001, between the Company, the lenders party thereto in their
capacities as lenders thereunder and Bank of America, N.A., as agent; (2) the
Amended and Restated Credit Agreement dated as of December 28, 2000 between SFI
II, Inc. and Greenwich Capital Markets, Inc., as lender; (3) the credit facility
between Deutsche Bank AG, New York Branch, and iStar DB Seller LLC, dated as of
January 11, 2001; and (4) the credit facility, dated as of August 12, 1998,
between Lehman Brothers Holdings, Inc. and SFT Whole Loan A, Inc., in each case,
together with the related documents thereto (including, without limitation, any
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (provided that such increase in borrowings is
permitted by Section 4.09 hereof) or adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"FAIR MARKET VALUE" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
-8-
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.06(f)
which is required to be placed on all Global Notes issued under this
Supplemental Indenture.
"GLOBAL NOTES" means, individually and collectively, the Global Notes,
in the form of Exhibit A, issued in accordance with Section 2.01 or 2.06.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, and for the payment of which the
United States pledges its full faith and credit.
"GUARANTOR" means: each of the Company's Subsidiaries that in the
future executes a supplemental indenture in which such Subsidiary agrees to be
bound by the terms of this Supplemental Indenture as a Guarantor; PROVIDED that
any Person constituting a Guarantor as described above shall cease to constitute
a Guarantor when its respective Guarantee is released in accordance with the
terms of this Supplemental Indenture.
"HOLDER" or "NOTEHOLDER" means a Person in whose name a Note is
registered.
"INDEBTEDNESS" means with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
and all Obligations under any title retention agreement (but excluding
trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted);
(5) all Obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit
transaction;
(6) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (1) through (5) above and clause
(8) below;
(7) all Obligations of any other Person of the type referred
to in clauses (1) through (6) above which are secured by any lien on
any property or asset of such Person,
-9-
the amount of such Obligation being deemed to be the lesser of the fair
market value of such property or asset and the amount of the Obligation
so secured;
(8) all Obligations under currency agreements and interest
swap agreements of such Person; and
(9) all Disqualified Capital Stock issued by such Person with
the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Supplemental Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.
"INDENTURE" means the Indenture dated as of February 5, 2001 between
the Company and the Trustee as amended or supplemented from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means a firm: (1) that does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company; and (2) that, in the judgment of the
Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"INITIAL NOTES" means the $350 million principal amount of 8 3/4%
Senior Notes due 2008 of the Company issued on the Issue Date.
"INTEREST PAYMENT DATE" means February 15 and August 15 of each year
commencing February 15, 2002.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"INVESTMENT" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee),
or corporate tenant lease to or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
-10-
services for the account or use of others), or any purchase or acquisition by
such Person of any Capital Stock, bonds, notes, debentures or other securities
or evidences or Indebtedness issued by, any Person. "Investment" shall exclude
extensions of trade credit by the Company and any Subsidiary of the Company on
commercially reasonable terms in accordance with the Company's or its
Subsidiaries' normal trade practices, as the case may be.
"INVESTMENT GRADE" means a rating of the Notes by both S&P and Moody's,
each such rating being one of such agency's four highest generic rating
categories that signifies investment grade (i.e. BBB (or the equivalent) or
higher by S&P and Baa3 (or the equivalent) or higher by Moody's); provided, in
each case, such ratings are publicly available; PROVIDED, FURTHER, that in the
event Moody's or S&P is no longer in existence for purposes of determining
whether the Notes are rated "Investment Grade," 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.
"ISSUE DATE" means August 16, 2001, the date of original issuance of
the Initial Notes.
"LIEN" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"MATURITY" when used with respect to the Notes means the date on which
the principal of the Notes becomes due and payable as therein provided or as
provided in this Supplemental Indenture, whether at Stated Maturity or on a
redemption date or pursuant to a Change of Control Offer, and whether by
declaration of acceleration, call for redemption, purchase or otherwise.
"MOODY'S" means Moody's Investors Service, Inc. or any successor rating
agency.
"NON-RECOURSE INDEBTEDNESS" means any of the Company's or any of its
Subsidiaries' Indebtedness that is:
(1) specifically advanced to finance the acquisition of
investment assets and secured only by the assets to which such
Indebtedness relates without recourse to the Company or any of its
Subsidiaries (other than subject to such customary carve-out matters
for which the Company or its Subsidiaries acts as a guarantor in
connection with such Indebtedness, such as fraud, misappropriation and
misapplication, unless, until and for so long as a claim for payment or
performance has been made thereunder (which has not been satisfied) at
which time the obligations with respect to any such customary carve-out
shall not be considered Non-Recourse Indebtedness, to the extent that
such claim is a liability of the Company for GAAP purposes);
(2) advanced to any of the Company's Subsidiaries or group of
its Subsidiaries formed for the sole purpose of acquiring or holding
investment assets against which a loan is obtained that is made without
recourse to, and with no crosscollateralization against, the Company or
any of the Company's Subsidiaries' other assets (other than subject to
such customary carve-out matters for which the Company or its
Subsidiaries acts as a guarantor in
-11-
connection with such Indebtedness, such as fraud, misappropriation and
misapplication, unless, until and for so long as a claim for payment or
performance has been made thereunder (which has not been satisfied) at
which time the obligations with respect to any such customary carve-out
shall not be considered Non-Recourse Indebtedness, to the extent that
such claim is a liability of the Company for GAAP purposes) and upon
complete or partial liquidation of which the loan must be
correspondingly completely or partially repaid, as the case may be; or
(3) specifically advanced to finance the acquisition of real
property and secured by only the real property to which such
Indebtedness relates without recourse to the Company or any of its
Subsidiaries (other than subject to such customary carve-out matters
for which the Company or its Subsidiaries acts as a guarantor in
connection with such Indebtedness, such as fraud, misappropriation and
misapplication, unless, until and for so long as a claim for payment or
performance has been made thereunder (which has not been satisfied) at
which time the obligations with respect to any such customary carve-out
shall not be considered Non-Recourse Indebtedness, to the extent that
such claim is a liability of the Company for GAAP purposes).
"NOTES" means, collectively, the Initial Notes and the Additional
Notes, if any, and treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Supplemental Indenture.
"OBLIGATIONS" means all obligations for principal, premium, interest,
penalties, fees, indemnification, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the President, Chief
Executive Officer, any Vice President, Chief Operating Officer, Treasurer,
Secretary or the Chief Financial Officer of such Person.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Officers of such Person; PROVIDED, HOWEVER, that every
Officers' Certificate with respect to compliance with a covenant or condition
provided for in this Supplemental Indenture shall include (i) a statement that
the Officers making or giving such Officers' Certificate have read such
condition and any definitions or other provisions contained in this Supplemental
Indenture relating thereto and (ii) a statement as to whether, in the opinion of
the signers, such conditions have been complied with.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Section
11.05. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"PERMITTED HOLDER(S)" means Starwood Mezzanine Investors, L.P., SOFI-IV
SMT Holdings, L.L.C., Starwood Capital Group, L.L.C. and each of their
respective Affiliates.
-12-
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(1) Indebtedness under the Initial Notes;
(2) Indebtedness incurred pursuant to the Existing Credit
Agreements in an aggregate principal amount at any time outstanding not
to exceed the maximum amount available under each Existing Credit
Facility as in effect on the Issue Date reduced by any required
permanent repayments (which are accompanied by a corresponding
permanent commitment reduction) thereunder;
(3) other Indebtedness of the Company and its Subsidiaries
outstanding on the Issue Date reduced by the amount of any scheduled
amortization payments or mandatory prepayments when actually paid or
permanent reductions thereon;
(4) Interest Swap Obligations of the Company covering
Indebtedness of the Company or any of its Subsidiaries and Interest
Swap Obligations of any Subsidiary of the Company covering Indebtedness
of such Subsidiary; PROVIDED, HOWEVER, that such Interest Swap
Obligations are entered into to protect the Company and its
Subsidiaries from fluctuations in interest rates on Indebtedness
incurred in accordance with this Supplemental Indenture to the extent
the notional principal amount of such Interest Swap Obligation does not
exceed the principal amount of the Indebtedness to which such Interest
Swap Obligation relates;
(5) Indebtedness under Currency Agreements; PROVIDED that in
the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and
its Subsidiaries outstanding other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(6) Indebtedness of a Subsidiary of the Company to the Company
or to a Wholly Owned Subsidiary of the Company for so long as such
Indebtedness is held by the Company or a Wholly Owned Subsidiary of the
Company;
(7) Indebtedness of the Company to a Wholly Owned Subsidiary
of the Company for so long as such Indebtedness is held by a Wholly
Owned Subsidiary of the Company, in each case subject to no Lien;
PROVIDED that: (a) any Indebtedness of the Company to any Wholly Owned
Subsidiary of the Company is unsecured and subordinated, pursuant to a
written agreement, to the Company's obligations under this Supplemental
Indenture and the Notes; and (b) if as of any date any Person other
than a Wholly Owned Subsidiary of the Company owns or holds any such
Indebtedness or any Person holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness by the Company;
(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; PROVIDED,
HOWEVER, that such Indebtedness is extinguished within two business
days of incurrence;
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(9) Indebtedness of the Company or any of its Subsidiaries
represented by letters of credit for the account of the Company or such
Subsidiary, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of
business;
(10) Refinancing Indebtedness; and
(11) additional Indebtedness of the Company and its
Subsidiaries in an aggregate principal amount not to exceed $15.0
million at any one time outstanding (which amount may, but need not, be
incurred in whole or in part under the Existing Credit Agreements).
For purposes of determining compliance with Section 4.09 hereof, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (1) through (11) above
or is entitled to be incurred pursuant to the second paragraph of such covenant,
the Company shall, in its sole discretion, classify (or later reclassify) such
item of Indebtedness in any manner that complies with this covenant. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Capital Stock in the
form of additional shares of the same class of Disqualified Capital Stock will
not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified
Capital Stock for purposes of the "Limitation on Incurrence of Additional
Indebtedness" covenant.
"PERMITTED LIENS" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or
claims either: (a) not delinquent; or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(4) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated
-14-
for the review of such judgment shall not have been finally terminated
or the period within which such proceedings may be initiated shall not
have expired;
(5) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(6) any interest or title of a lessor under any Capitalized
Lease Obligation; PROVIDED that such Liens do not extend to any
property or assets which is not leased property subject to such
Capitalized Lease Obligation;
(7) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods;
(8) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(9) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or any of its Subsidiaries, including
rights of offset and set-off;
(10) Liens securing Interest Swap Obligations which Interest
Swap Obligations relate to Indebtedness that is otherwise permitted
under this Supplemental Indenture; and
(11) Liens securing Indebtedness under Currency Agreements.
"PERSON" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
"PREFERRED STOCK" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"REFINANCE" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Refinancing by the Company or any
Subsidiary of the Company of Indebtedness incurred in accordance with Section
4.09 hereof (other than pursuant to clauses (2), (4), (5), (6), (7), (8), (9) or
(11) of the definition of Permitted Indebtedness), in each case that does not:
-15-
(1) result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed Refinancing
(plus the amount of any premium required to be paid under the terms of
the instrument governing such Indebtedness and plus the amount of
reasonable expenses incurred by the Company in connection with such
Refinancing); or
(2) create Indebtedness with: (a) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced; or (b) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced; PROVIDED that (i)
if such Indebtedness being Refinanced is Indebtedness of the Company,
then such Refinancing Indebtedness shall be Indebtedness solely of the
Company, and (ii) if such Indebtedness being Refinanced is subordinate
or junior to the Notes, then such Refinancing Indebtedness shall be
subordinate to the Notes at least to the same extent and in the same
manner as the Indebtedness being Refinanced.
"REIT" means Real Estate Investment Trust.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
managing director, director, principal, vice president, assistant vice
president, assistant treasurer, associate or any other officer within the
corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
shall mean, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge and familiarity
with the particular subject.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien upon
the property of the Company or any of its Subsidiaries.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR RECOURSE INDEBTEDNESS" means all Indebtedness of the Company
and its Subsidiaries (other than Indebtedness that is Non-Recourse Indebtedness
and other than Subordinated Indebtedness).
"SIGNIFICANT SUBSIDIARY," with respect to any Person, means any
Subsidiary of such Person that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the Exchange Act.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill
Inc., a New York corporation, or any successor rating agency.
"STATED MATURITY" when used with respect to any Indebtedness or any
installment of interest thereon means the dates specified in such Indebtedness
as the fixed date on which the principal of or premiums on such Indebtedness or
such installment of interest is due and payable.
"SUBORDINATED INDEBTEDNESS" means all of the Company's and its
Subsidiaries' Indebtedness that expressly provides that such Indebtedness shall
be subordinated in right of payment to any other
-16-
Indebtedness and matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (except, in each case, upon the occurrence of a Change of Control) on or
after the final maturity date of the Notes.
"SUBSIDIARY," with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast in the
election of directors under ordinary circumstances shall at the time be
owned, directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the
voting interest under ordinary circumstances is at the time, directly
or indirectly, owned by such Person.
"SUPPLEMENTAL INDENTURE" means this Supplemental Indenture as amended
or supplemented from time to time.
"TOTAL UNENCUMBERED ASSETS" as of any date means the sum of:
(1) those Undepreciated Real Estate Assets not securing any
portion of Secured Indebtedness; and
(2) all other assets (but excluding intangibles and accounts
receivable) of the Company and its Subsidiaries not securing any
portion of Secured Indebtedness determined on a consolidated basis in
accordance with GAAP.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Supplemental
Indenture and thereafter means the successor serving hereunder.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended.
"UNDEPRECIATED REAL ESTATE ASSETS" means, as of any date, the cost
(being the original cost to the Company or any of Subsidiaries plus capital
improvements) of real estate assets of the Company and its Subsidiaries on such
date, before depreciation and amortization of such real estate assets,
determined on a consolidated basis in accordance with GAAP.
"UNSECURED INDEBTEDNESS" means any Indebtedness of the Company or any
of its Subsidiaries that is not Secured Indebtedness.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (1) the then
outstanding aggregate principal amount of such Indebtedness into; (2) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
-17-
"WHOLLY OWNED SUBSIDIARY" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than in the case of
a foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
TERM SECTION
- ---- -------
"AFFILIATE TRANSACTION"............................................................ 4.10
"AUTHENTICATION ORDER"............................................................. 2.02
"CHANGE OF CONTROL DATE"........................................................... 4.13
"CHANGE OF CONTROL PAYMENT DATE"................................................... 4.13
"CHANGE OF CONTROL OFFER".......................................................... 4.13
"CHANGE OF CONTROL PURCHASE DATE".................................................. 4.13
"CHANGE OF CONTROL PURCHASE PRICE"................................................. 4.13
"COVENANT DEFEASANCE".............................................................. 8.03
"DTC".............................................................................. 2.03
"EVENT OF DEFAULT"................................................................. 6.01
"INCUR"............................................................................ 4.09
"LEGAL DEFEASANCE"................................................................. 8.02
"PAYING AGENT"..................................................................... 2.03
"REGISTRAR"........................................................................ 2.03
"REDEMPTION DATE".................................................................. 3.07
"RESTRICTED PAYMENT"............................................................... 4.07
"SURVIVING ENTITY"................................................................. 5.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Supplemental Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Supplemental
Indenture.
All terms used in this Supplemental Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
-18-
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and transactions;
and
(f) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Supplemental Indenture and the Company
and the Trustee, by their execution and delivery of this Supplemental Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Supplemental Indenture, the provisions of this Supplemental Indenture shall
govern and be controlling.
(b) GLOBAL NOTES. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with written
instructions given by the Holder thereof as required by Section 2.06 hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION. One or more Officers shall
sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
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A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Supplemental Indenture.
The Trustee shall, upon a written order of the Company signed by one or
more Officers (an "AUTHENTICATION ORDER"), authenticate Notes for original issue
on the Issue Date in aggregate principal amount not to exceed $350,000,000
(other than as provided in Section 2.07). The Trustee shall authenticate
Additional Notes thereafter (so long as permitted by the terms of this
Supplemental Indenture) for original issue upon one or more Authentication
Orders in aggregate principal amount as specified in such order (other than as
provided in Section 2.07); PROVIDED, HOWEVER, such additional amount shall not
exceed $150,000,000 in the aggregate. Each such Authentication Order shall
specify the amount of Notes to be authenticated, whether the Notes are to be
Initial Notes or Additional Notes and whether the Notes are to be issued as
Definitive Notes or Global Notes or such other information as the Trustee shall
reasonably request.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Supplemental Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange ("REGISTRAR") and an office or agency where Notes may be presented
for payment ("PAYING AGENT"). The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Supplemental Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal, premium, if any, or
interest on the Notes, and will notify the Trustee in writing of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If
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the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders and shall otherwise comply with TIA ss.
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of the Holders and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
written notice from the Depositary that it is unwilling or unable to continue to
act as Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee in writing. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections
2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or
in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06
or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a); PROVIDED, HOWEVER, that
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b) or (c) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Supplemental Indenture and the Applicable Procedures. Transfers of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in a
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
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(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Supplemental Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section
2.06(g) hereof.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE NOTES.
If any holder of a beneficial interest in a Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS.
A Holder of a Definitive Note may exchange such Note for a beneficial interest
in a Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected at a time when a Global Note has not
yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
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(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon written request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to this Section
2.06(e).
A Holder of Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of a Definitive Note. Upon receipt of a
written request to register such a transfer, the Registrar shall register the
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06
OF THE SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE SUPPLEMENTAL INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
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(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company and
the Trustee may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 4.13 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Supplemental
Indenture, as the Global Notes or Definitive Notes surrendered upon
such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07. REPLACEMENT NOTES. If any mutilated Note is surrendered
to the Trustee or the Company and the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or
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the Company, an indemnity bond must be supplied by the Holder that is sufficient
in the judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them
may suffer if a Note is replaced. The Company may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Supplemental Indenture equally
and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES. The Notes outstanding at any time are
all the Notes authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. TREASURY NOTES. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company, or by any Affiliate of the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee actually knows are so
owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES. Until certificates representing Notes
are ready for delivery, the Company may prepare and the Trustee, upon receipt of
an Authentication Order, shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of certificated Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Supplemental Indenture.
SECTION 2.11. CANCELLATION. The Company at any time may deliver Notes
to the Trustee for cancellation. The Registrar and Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee and no one else shall cancel all
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Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall destroy canceled Notes (subject to the record
retention requirement of the Exchange Act). The Company may not issue new Notes
to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST. If the Company defaults in a payment
of interest on the Notes, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Holders on a subsequent special record date, in each case
at the rate provided in the Notes and in Section 4.01 hereof. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date; PROVIDED that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.13. RECORD DATE . The Company may set a record date for
purposes of determining the identity of Holders entitled to vote or to consent
to any action by vote or consent authorized or permitted by Sections 6.04 and
6.05.
SECTION 2.14. CUSIP NUMBERS. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
CUSIP numbers in notices of redemption as a convenience to Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or the omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem Notes
pursuant to the optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers' Certificate setting forth (i) the clause of this
Supplemental Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed, (iv) the
redemption price and (v) the CUSIP numbers of the Notes to be redeemed.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. In the event that the
Company chooses to redeem less than all of the Notes, selection of the Notes for
redemption will be made by the Trustee either:
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(1) in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed; or
(2) on a PRO RATA basis, by lot or by such method as the
Trustee shall deem fair and appropriate.
No Notes of a principal amount of $1,000 or less shall be redeemed in
part. If a partial redemption is made with the proceeds of an Equity Offering
(as defined in Section 3.07(b)), the Trustee will select the Notes only on a PRO
RATA basis or on as nearly a PRO RATA basis as is practicable (subject to DTC
procedures).
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Supplemental Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a redemption date, the Company shall mail or cause to be mailed,
by first class mail (at its own expense), a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed, including the CUSIP
numbers, and shall state:
(a) the redemption date;
(b) the redemption price and the amount of accrued and unpaid
interest, if any, to be paid;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Supplemental Indenture pursuant to which the Notes called for
redemption are being redeemed; and
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(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have provided to the Trustee, at least 45 days prior to the
redemption date (unless a shorter notice shall be satisfactory to the Trustee),
the information required by clauses (a) through (d) above.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is mailed in accordance with Section 3.03 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the redemption
price. A notice of redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. One Business Day prior to
the redemption date, the Company shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date and any amounts owed the
Trustee. The Trustee or the Paying Agent shall promptly return to the Company
any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed and any amounts owed the Trustee.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART. Upon surrender of a Note that is
redeemed in part, the Company shall issue and, upon the Company's written
request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION. (a) At any time on or prior to
August 15, 2008, the Notes may be redeemed or purchased in whole but not in part
at the Company's option at a price equal to 100% of the principal amount thereof
plus the Applicable Premium as of, and accrued but unpaid interest, if any, to,
the date of redemption or purchase (the "Redemption Date") (subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
"APPLICABLE PREMIUM" means, with respect to a Note at any Redemption
Date, the greater of: (1) 1.0% of the principal amount of such Note; and (2) the
excess of (a) the present value at such Redemption Date of (i) the redemption
price of such Note on August 15, 2008 plus (ii) all required remaining scheduled
interest payments due on such Note through August 15, 2008, computed using a
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discount rate equal to the Treasury Rate plus 50 basis points; over (b) the
principal amount of such Note on such Redemption Date. Calculation of the
Applicable Premium will be made by the Company or on behalf of the Company by
such Person as the Company shall designate; PROVIDED, HOWEVER, that such
calculation shall not be a duty or obligation of the Trustee.
"TREASURY RATE" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to August 15, 2008;
PROVIDED, HOWEVER, that if the period from such Redemption Date to August 15,
2008 is not equal to the constant maturity of the United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the period from such Redemption Date
to , 2008 is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to August 15, 2004, the Company may, at its option,
use the net cash proceeds of one or more Equity Offerings to redeem up to 35% of
the principal amount of the Notes issued under this Supplemental Indenture at a
redemption price of 108.75% of the principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of redemption; PROVIDED that:
(1) at least 65% of the principal amount of Notes issued under
this Supplemental Indenture remains outstanding immediately after any
such redemption; and
(2) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
Other than as specifically provided in this Section 3.07, any
redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION. The Company shall not be required
to make mandatory redemption payments with respect to the Notes prior to
Maturity.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall pay or cause to be
paid the principal of, premium, if any, and interest on the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company or a Subsidiary, holds as of 10:00 a.m. Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.
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The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company shall
maintain in the Borough of Manhattan, the City of New York, an office or agency
(which may be an office of the Trustee or an affiliate of the Trustee, Registrar
or co-registrar) where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Company in respect of
the Notes and this Supplemental Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.03. REPORTS TO HOLDERS. Whether or not required by the rules
and regulations of the Commission, so long as any Notes are outstanding, the
Company shall furnish the Holders of Notes:
(1) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries and, with respect to the annual information only, a report
thereon by the Company's certified independent accounts; and
(2) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file
such reports, in each case within the time periods specified in the
Commission's rules and regulations.
In addition, whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability within the time periods
specified in the Commission's rules and regulations (unless the Commission will
not accept such a filing) and make such information available to securities
analysts and
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prospective investors upon request. In addition, the Company has agreed that,
for so long as any Notes remain outstanding, it will furnish to the Holders and
to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.04. COMPLIANCE CERTIFICATE. (a) The Company shall deliver to
the Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled their obligations under this
Supplemental Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Supplemental Indenture and is not in default in the performance or observance of
any of the terms, provisions and conditions of this Supplemental Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05. TAXES. The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Supplemental Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.07. LIMITATION ON RESTRICTED PAYMENTS. The Company shall not,
and shall not cause or permit any of its Subsidiaries to, directly or
indirectly:
(1) declare or pay any dividend or make any distribution
(other than dividends or distributions payable in Qualified Capital
Stock of the Company) on or in respect of shares of the Company's
Capital Stock to holders of such Capital Stock;
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(2) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock; or
(3) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the Company that is subordinate or junior
in right of payment to the Notes if at the time of such action (each, a
"Restricted Payment") or immediately after giving effect thereto,
(i)a Default or an Event of Default shall have
occurred and be continuing; or
(ii) the Company is not able to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness)
in compliance with Section 4.09 hereof; or
(iii) the aggregate amount of Restricted Payments
(including such proposed Restricted Payment) made subsequent
to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such
property as determined in good faith by the Board of Directors
of the Company) shall exceed the sum of:
(w) 95% of the cumulative Consolidated Adjusted
Earnings (or if cumulative Consolidated
Adjusted Earnings shall be a loss, minus
100% of such loss) of the Company earned
subsequent to June 30, 2001 and on or prior
to the date the Restricted Payment occurs
(the "Reference Date") (treating such period
as a single accounting period); plus
(x) 100% of the aggregate net cash proceeds
received by the Company from any Person
(other than a Subsidiary of the Company)
from the issuance and sale subsequent to the
Issue Date and on or prior to the Reference
Date of Qualified Capital Stock of the
Company; plus
(y) without duplication of any amounts included
in clause (iii)(x) above, 100% of the
aggregate net cash proceeds of any equity
contribution received by the Company from a
holder of the Company's Capital Stock
(excluding, in the case of clauses (iii)(x)
and (y), any net cash proceeds from an
Equity Offering to the extent used to redeem
the Notes in compliance with the provisions
set forth under Section 3.07(b) hereof).
The foregoing provisions do not prohibit:
(1) the payment of any dividend within 60 days after the date
of declaration of such dividend if the dividend would have been
permitted on the date of declaration;
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(2) if no Default or Event of Default shall have occurred and
be continuing, the acquisition of any shares of Capital Stock of the
Company, either (i) solely in exchange for shares of Qualified Capital
Stock of the Company or (ii) through the application of net proceeds of
a substantially concurrent sale for cash (other than to a Subsidiary of
the Company) of shares of Qualified Capital Stock of the Company;
(3) if no Default or Event of Default shall have occurred and
be continuing, the acquisition of any Indebtedness of the Company that
is subordinate or junior in right of payment to the Notes either (i)
solely in exchange for shares of Qualified Capital Stock of the
Company, or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of
the Company) of (a) shares of Qualified Capital Stock of the Company or
(b) Refinancing Indebtedness;
(4) so long as no Default or Event of Default shall have
occurred and be continuing, repurchases by the Company of Common Stock
of the Company from employees of the Company or any of its Subsidiaries
or their authorized representatives upon the death, disability or
termination of employment of such employees, in an aggregate amount not
to exceed $500,000 in any calendar year;
(5) the declaration or payment by the Company of any dividend
or distribution that is necessary to maintain its status as a REIT
under the Code if:
(a) the Consolidated Fixed Charge Coverage Ratio of
the Company is greater than 2.0 to 1.0; and
(b) no Default or Event of Default shall have
occurred and be continuing;
(6) the payment of any dividend on Preferred Stock of the
Company; and
(7) Restricted Payments in an amount not to exceed $75.0
million.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (iii) of the immediately
preceding paragraph, amounts expended pursuant to clauses (1), (2) (ii), 3 (ii)
(a), (4), (5) and (7) shall be included in such calculation.
SECTION 4.08. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES. The Company shall not, and shall not cause or permit any
of its Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary of the Company to:
(1) pay dividends or make any other distributions on or in
respect of its Capital Stock;
(2) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Subsidiary of the Company;
or
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(3) transfer any of its property or assets to the Company or
any other Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of:
(a) applicable law;
(b) this Supplemental Indenture;
(c) customary non-assignment provisions of any
contract or any lease governing a leasehold interest of any
Subsidiary of the Company;
(d) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so
acquired;
(e) agreements existing on the Issue Date to the
extent and in the manner such agreements are in effect on the
Issue Date;
(f) provisions of any agreement governing
Indebtedness incurred in accordance with this Supplemental
Indenture that impose such encumbrances or restrictions upon
the occurrence of a default or failure to meet financial
covenants or conditions under the agreement;
(g) restrictions on the transfer of assets (other
than cash) held in a Subsidiary of the Company imposed under
any agreement governing Indebtedness incurred in accordance
with this Supplemental Indenture;
(h) provisions of any agreement governing
Indebtedness incurred in accordance with this Supplemental
Indenture that require a Subsidiary to service its debt
obligations before making dividends, distributions or
advancements in respect of its Capital Stock;
(i) an agreement governing Indebtedness incurred to
Refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clause (b), (d) or (e)
above; PROVIDED, HOWEVER, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness
are not materially less favorable to the Company in any
material respect as determined by the Board of Directors of
the Company in their reasonable and good faith judgment than
the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (b), (d) or
(e).
SECTION 4.09. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS. The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume, guarantee, become liable, contingently or
otherwise, with respect to, or otherwise become responsible for
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payment of (collectively, "incur") any Indebtedness (including, without
limitation, Acquired Indebtedness) other than Permitted Indebtedness.
Notwithstanding the foregoing, if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company or any of its Subsidiaries may
incur Indebtedness (including, without limitation, Acquired Indebtedness), in
each case if on the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof:
o the Consolidated Fixed Charge Coverage Ratio of the Company is
greater than 1.50 to 1.0;
o the ratio of the aggregate amount of Indebtedness outstanding
on a consolidated basis to the Company's Consolidated Net
Worth is less than 5.0 to 1.0; and
o the ratio of the aggregate amount of Senior Recourse
Indebtedness outstanding on a consolidated basis to the sum
of: (1) the Company's Consolidated Net Worth; and (2) the
aggregate amount of the Subordinated Indebtedness outstanding
on a consolidated basis is less than 2.75 to 1.0; PROVIDED,
HOWEVER, that the aggregate principal amount of such
Subordinated Indebtedness is not in excess of the Company's
Consolidated Net Worth.
Notwithstanding the foregoing, the Company shall not permit TriNet
Corporate Realty Trust, Inc. ("TriNet") or any of its Subsidiaries to incur
Indebtedness (as defined in the indenture governing TriNet's outstanding
publicly-held debt securities on the Issue Date) if, immediately after giving
effect to the incurrence of such Indebtedness and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Indebtedness
of TriNet and its Subsidiaries on a consolidated basis determined in accordance
with GAAP is greater than 55% of the sum of (without duplication): (1) the Total
Assets (as defined in the indenture governing TriNet's outstanding publicly-held
debt securities on the Issue Date) of TriNet and its Subsidiaries as of the end
of the calendar quarter covered in TriNet's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Indebtedness; and (2) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent that such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Indebtedness), by TriNet or any Subsidiary of TriNet since the
end of such calendar quarter, including those proceeds obtained in connection
with the incurrence of such additional Indebtedness. The above limitation shall
terminate immediately upon TriNet ceasing to exist as a Subsidiary of the
Company as a result of a merger or consolidation of TriNet with the Company or
the sale, transfer, disposition or distribution of all or substantially all of
TriNet's assets to the Company.
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH AFFILIATES. The Company
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction or series of related
transactions (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with, or for the
benefit of, any of its Affiliates (each an
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"Affiliate Transaction"), other than: (1) Affiliate Transactions permitted as
described below; and (2) Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm's-length basis from a Person that is not an
Affiliate of the Company or such Subsidiary.
All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a fair market value in excess of $5.0 million
shall be approved by the Board of Directors of the Company or such Subsidiary,
as the case may be, such approval to be evidenced by a Board Resolution stating
that such Board of Directors has determined that such transaction complies with
the foregoing provisions. If the Company or any Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $10.0 million, the Company or such Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the fairness
of such transaction or series of related transactions to the Company or the
relevant Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee.
The restrictions set forth in the first paragraph of this Section 4.10
shall not apply to:
(1) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees or consultants of
the Company or any Subsidiary of the Company as determined in good
faith by the Company's Board of Directors or senior management;
(2) transactions exclusively between or among the Company and
any of its Subsidiaries or exclusively between or among such
Subsidiaries in the ordinary course of business, PROVIDED such
transactions are not otherwise prohibited by this Supplemental
Indenture;
(3) transactions between the Company or one of its
Subsidiaries and any Person in which the Company or one of its
Subsidiaries has made an Investment in the ordinary course of the
Company's real estate lending business and such Person is an Affiliate
solely because of such Investment;
(4) transactions between the Company or one of its
Subsidiaries and any Person in which the Company or one of its
Subsidiaries holds an interest as a joint venture partner and such
Person is an Affiliate solely because of such interest;
(5) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto
so long as any such amendment or replacement agreement is not more
disadvantageous to the Holders in any material respect than the
original agreement as in effect on the Issue Date; and
(6) Restricted Payments permitted by Section 4.07.
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SECTION 4.11. LIMITATION ON LIENS. The Company shall not, and shall not
cause or permit any of its Subsidiaries to, directly or indirectly, create,
incur, assume or permit or suffer to exist any Liens of any kind on the assets
of the Company securing Indebtedness of the Company unless:
(1) in the case of Liens securing Indebtedness of the Company
that is expressly subordinate or junior in right of payment to the
Notes, the Notes are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens; and
(2) in all other cases, the Notes are equally and ratably
secured except for:
(a) Liens existing as of the Issue Date to the extent
and in the manner such Liens are in effect on the Issue Date;
(b) Liens securing the Notes;
(c) Liens securing Refinancing Indebtedness that is
incurred to Refinance any Indebtedness that has been secured
by a Lien permitted under this Supplemental Indenture and that
has been incurred in accordance with the provisions of this
Supplemental Indenture; PROVIDED, HOWEVER, that such Liens:
(i) are no less favorable to the Holders than the Liens in
respect of the Indebtedness being Refinanced; and (ii) do not
extend to or cover any property or assets of the Company not
securing the Indebtedness so Refinanced; and
(d) Permitted Liens.
SECTION 4.12. CORPORATE EXISTENCE. Subject to Article 5 hereof, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
PROVIDED, HOWEVER, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
SECTION 4.13. OFFER TO REPURCHASE UPON CHANGE OF CONTROL. (a) Upon the
occurrence of a Change of Control (the date of such occurrence, the "CHANGE OF
CONTROL DATE"), then each Holder shall have the right to require the Company to
purchase such Holder's Notes in whole or in part in integral multiples of $1,000
at a purchase price (the "CHANGE OF CONTROL PURCHASE PRICE") in cash equal to
101% of the principal amount of such Notes, plus accrued and unpaid interest, if
any, at the date of purchase (the "CHANGE OF CONTROL PURCHASE DATE"), pursuant
to and in accordance with the offer described in this Section 4.13 (the "CHANGE
OF CONTROL OFFER").
(b) Within 30 days following the Change of Control Date the Company
shall send, by first class mail, a notice to the Holders and the Trustee
stating:
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(i) that the Change of Control Offer is being made pursuant to
this Section 4.13 and that all Notes validly tendered will be accepted
for payment;
(ii) the Change of Control Purchase Price and the Change of
Control Purchase Date, which shall be a Business Day that is no earlier
than 30 days nor later than 60 days from the date such notice is mailed
(the "CHANGE OF CONTROL PAYMENT DATE") other than as may be required by
law;
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that any Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Payment Date unless the Company shall default in the payment of
the Change of Control Purchase Price of the Notes and the only
remaining right of the Holder is to receive payment of the Change of
Control Purchase Price upon surrender of the applicable Note to the
Paying Agent;
(v) that Holders electing to have a portion of a Note
purchased pursuant to a Change of Control Offer may only elect to have
such Note purchased in integral multiples of $1,000;
(vi) that if a Holder elects to have a Note purchased pursuant
to the Change of Control Offer it will be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day prior to the Change of
Control Payment Date;
(vii) that a Holder will be entitled to withdraw its election
if the Company receives, not later than the third Business Day
preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Notes such Holder delivered for purchase, and a
statement that such Holder is withdrawing its election to have such
Note purchased; and
(viii) that if Notes are purchased only in part a new Note of
the same type will be issued in principal amount equal to the
unpurchased portion of the Notes surrendered.
(c) On or before the Change of Control Payment Date, the Company shall,
to the extent lawful, accept for payment, all Notes or portions thereof validly
tendered pursuant to the Change of Control Offer, and shall deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 4.13. The Company, the Depositary or the Paying Agent, as the case may
be, shall promptly mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new
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Note, and the Trustee, upon written request from the Company shall authenticate
and mail or deliver such new Note to such Holder, in a principal amount equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder thereof.
(d) The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes pursuant to an offer hereunder. To the extent the provisions of any
securities laws or regulations conflict with the provisions under this Section
4.13, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.13 by virtue thereof.
SECTION 4.14. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES. The
Company shall not permit any of its Subsidiaries to issue any Preferred Stock
(other than to the Company or to a Wholly Owned Subsidiary of the Company) or
permit any Person (other than the Company or a Wholly Owned Subsidiary of the
Company) to own any Preferred Stock of any Subsidiary of the Company, other than
Preferred Stock outstanding on the Issue Date of Subsidiaries formed to
facilitate maintaining the Company's REIT status.
SECTION 4.15. CONDUCT OF BUSINESS. The Company and its Subsidiaries
shall engage primarily in the financing and real-estate related businesses
contemplated by Article III(b) of the Company's Amended and Restated Charter as
in effect on the Issue Date and other activities related to or arising out of
those activities.
SECTION 4.16. LIMITATION OF GUARANTEES BY SUBSIDIARIES. The Company
shall not permit any of its Subsidiaries, directly or indirectly, by way of the
pledge of any intercompany note or otherwise, to assume, guarantee or in any
other manner become liable with respect to any Indebtedness of the Company,
unless, in any such case:
(1) such Subsidiary executes and delivers a supplemental
indenture to this Supplemental Indenture, providing a guarantee of
payment of the Notes by such Subsidiary; and
(2) if such assumption, guarantee or other liability of such
Subsidiary is provided in respect of Indebtedness that is expressly
subordinated to the Notes, the guarantee or other instrument provided
by such Subsidiary in respect of such subordinated Indebtedness shall
be subordinated to the Guarantee pursuant to subordination provisions
no less favorable to the Holders of the Notes than those contained in
this Supplemental Indenture.
Notwithstanding the foregoing, any such Guarantee by a Subsidiary of
the Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged, without any further action required on
the part of the Trustee or any Holder, upon:
(1) the unconditional release of such Subsidiary from its
liability in respect of the Indebtedness in connection with which such
Guarantee was executed and delivered pursuant to the preceding
paragraph; or
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(2) any sale or other disposition (by merger or otherwise) to
any Person that is not a Subsidiary of the Company of all of the
Company's Capital Stock in, or all or substantially all of the assets
of, such Subsidiary; PROVIDED that: (a) such sale or disposition of
such Capital Stock or assets is otherwise in compliance with the terms
of this Supplemental Indenture; and (b) such assumption, guarantee or
other liability of such Subsidiary has been released by the holders of
the other Indebtedness so guaranteed.
SECTION 4.17. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Company and
its Subsidiaries shall maintain Total Unencumbered Assets of not less than 125%
of the aggregate outstanding principal amount of the Unsecured Indebtedness of
the Company and its Subsidiaries, in each case on a consolidated basis.
SECTION 4.18. TERMINATION OF CERTAIN COVENANTS IN EVENT OF INVESTMENT
GRADE RATING. In the event that each of the Rating Categories assigned to the
Notes by the Rating Agencies is Investment Grade, the obligations under the
covenants contained in Sections 4.07, 4.08, 4.10, 4.11, 4.14, 4.15 and 4.16
hereof shall cease to apply to the Company in the event, and only for so long
as, the Notes are rated Investment Grade and no Default or Event of Default has
occurred and is continuing.
SECTION 4.19. MAINTENANCE OF PROPERTIES; BOOKS AND RECORDS; COMPLIANCE
WITH LAW.
(a) The Company shall and shall cause each of its Subsidiaries to at
all times cause all properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) and supplied with all necessary equipment, and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereto; provided that nothing in this Section 4.19 shall prevent
the Company or any of its Subsidiaries from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is either (i) in the ordinary course of business,
(ii) in the reasonable and good faith judgment of the Board of Directors or
management of the Company or the Subsidiary concerned, as the case may be,
desirable in the conduct of the business of the Company or such Subsidiary, as
the case may be, or (iii) otherwise permitted by this Supplemental Indenture.
(b) The Company shall and shall cause each of its Subsidiaries to keep
proper and true books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Company and each of its Subsidiaries, and reflect on its financial statements
adequate accruals and appropriations to reserves, all in accordance with GAAP
consistently applied to the Company and its Subsidiaries taken as a whole.
(c) The Company shall and shall cause each of its Subsidiaries to
comply in all material respects with all statutes, laws, ordinances, or
government rules and regulations to which it is subject, noncompliance with
which would materially adversely affect the business, earnings, properties,
assets or condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole.
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ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS. The Company
shall not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease,
convey or otherwise dispose of (or cause or permit any Subsidiary of the Company
to sell, assign, transfer, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a consolidated basis
for the Company and the Company's Subsidiaries) whether as an entirety or
substantially as an entirety to any Person unless:
(1) either:
(a) the Company shall be the surviving or continuing
corporation; or
(b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the
Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of
the Company and of the Company's Subsidiaries substantially as
an entirety (the "Surviving Entity"):
(i) shall be a corporation organized and
validly existing under the laws of the United States
or any State thereof or the District of Columbia; and
(ii) shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the
Trustee), executed and delivered to the Trustee, the
due and punctual payment of the principal of, and
premium, if any, and interest on all of the Notes and
the performance of every covenant of the Notes and
this Supplemental Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and
the assumption contemplated by clause (1)(b)(ii) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be:
(a) shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such
transaction; and (b) shall be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.09 hereof; PROVIDED, HOWEVER, that this clause (2) shall not
apply in the event of a transaction between the Company and TriNet;
(3) immediately before and immediately after giving effect to
such transaction and the assumption contemplated by clause (1)(b)(ii)
above (including, without limitation, giving effect to any Indebtedness
and Acquired Indebtedness incurred or anticipated to be incurred and
any Lien granted in connection with or in respect of the transaction),
no Default or Event of Default shall have occurred or be continuing;
and
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(4) the Company or the Surviving Entity shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment, transfer,
lease, conveyance or other disposition and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Supplemental
Indenture and that all conditions precedent in this Supplemental
Indenture relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Supplemental Indenture referring to the "Company" shall refer
instead to the successor corporation and not to the Company), and may exercise
every right and power of the Company under this Supplemental Indenture with the
same effect as if such successor Person had been named as the Company herein;
PROVIDED, HOWEVER, that, in the case of a transfer by lease, the predecessor
Company shall not be relieved from the obligation to pay the principal of and
interest on the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. The following are "Events of Default":
(1) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of 30
days;
(2) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer);
(3) a default in the observance or performance of any other
covenant or agreement contained in this Supplemental Indenture and such
default continues for a period of 30 days after the Company receives
written notice specifying the default (and demanding that such default
be remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.01 hereof, which will constitute an
Event of Default with such notice requirement but without such passage
of time requirement);
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(4) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness (other than Non-Recourse Indebtedness) of
the Company or any Subsidiary of the Company, or the acceleration of
the final stated maturity of any such Indebtedness (which acceleration
is not rescinded, annulled or otherwise cured within 20 days of receipt
by the Company or such Subsidiary of notice of any such acceleration)
if the aggregate principal amount of such Indebtedness, together with
the principal amount of any other such Indebtedness in default for
failure to pay principal at final maturity or which has been
accelerated, aggregates $20.0 million or more at any time;
(5) one or more judgments in an aggregate amount in excess of
$20.0 million shall have been rendered against the Company or any of
its Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments
become final and non-appealable (other than any judgments as to which,
and only to the extent, a reputable insurance company has acknowledged
coverage of such judgments in writing);
(6) there shall have been the entry by a court of competent
jurisdiction of:
(a) a decree or order for relief in respect of the
Company or any Significant Subsidiary in an involuntary case
or proceeding under any applicable Bankruptcy Law; or
(b) a decree or order adjudging the Company or any
Significant Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or
in respect of the Company or any Significant Subsidiary under
any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order
shall be unstayed and in effect, for a period of 60
consecutive days; or
(7) (a) the Company or any Significant Subsidiary commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent;
(b) the Company or any Significant Subsidiary
consents to the entry of a decree or order for relief in
respect of the Company or such Significant Subsidiary in an
involuntary case or proceeding under any applicable Bankruptcy
Law or to the commencement of any bankruptcy or insolvency
case or proceeding against it;
(c) the Company or any Significant Subsidiary files a
petition or answer or consent seeking reorganization or relief
under any applicable federal or state law;
(d) the Company or any Significant Subsidiary:
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(i) consents to the filing of such petition
or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
such Significant Subsidiary or of any substantial
part of its property;
(ii) makes an assignment for the benefit of
creditors; or
(iii) admits in writing its inability to pay
its debts generally as they become due; or
(e) the Company or any Significant Subsidiary takes
any corporate action in furtherance of any such actions in
this clause (7).
SECTION 6.02. ACCELERATION. If an Event of Default (other than an Event
of Default specified in clauses (6) or (7) above with respect to the Company)
shall occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Notes may declare the principal of and accrued
interest on all the Notes to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration" (the "Acceleration Notice"), and the same shall
become immediately due and payable.
If an Event of Default specified in clauses (6) or (7) above with
respect to the Company occurs and is continuing, then all unpaid principal of,
and premium, if any, and accrued and unpaid interest on all of the outstanding
Notes shall IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due
solely because of the acceleration;
(3) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid;
(4) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances; and
(5) in the event of the cure or waiver of an Event of Default
of the type described in clauses (6) or (7) of Section 6.01 hereof, the
Trustee shall have received an Officers' Certificate and an Opinion of
Counsel that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right
consequent thereto.
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SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Supplemental Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS. Holders of not less than a
majority in aggregate principal amount of the then outstanding Notes by notice
in writing to the Trustee may on behalf of the Holders of all of the Notes waive
an existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on, the Notes (including in connection with a
Change of Control Offer or other offer to purchase) (PROVIDED, HOWEVER, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Supplemental
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY. Holders of a majority in principal
amount of the then outstanding Notes may, by written notice, direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Supplemental Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in any personal liability.
SECTION 6.06. LIMITATION ON SUITS. A Holder of a Note may pursue a
remedy with respect to this Supplemental Indenture or the Notes only if:
(a) a Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a written direction inconsistent with the request.
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A Holder may not use this Supplemental Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Supplemental Indenture, the right of
any Holder to receive payment of principal, premium, if any, and interest on the
Notes so held, on or after the respective due dates expressed in the Notes
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of, premium, if any,
and interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any amounts due the Trustee under Section 7.07
hereof.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent in writing to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
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SECOND: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any and interest,
respectively; and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Supplemental Indenture or in any suit against the
Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Supplemental Indenture, and use the same degree of
care and skill in its exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Supplemental
Indenture and no implied covenants or obligations shall be read into
this Supplemental Indenture against the Trustee; and
(ii) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Supplemental Indenture in the absence of bad faith
on the Trustee's part; PROVIDED, HOWEVER, that the Trustee shall
examine the certificates and opinions to determine whether or not they
substantially conform to the requirements of this Supplemental
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a written
direction received by it pursuant to Section 6.05; and
(iv) the Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of
any of its duties under this Supplemental Indenture or in the exercise
of any of its rights or powers, if it has reasonable grounds to believe
repayment of the funds or adequate indemnity against the risk or
liability is not reasonably assured to it.
(d) Every provision of this Supplemental Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee is
subject to the provisions of this Section 7.01 and to the provisions of the TIA.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money and
Government Securities held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) 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
Holders of not less than a majority in principal amount of the Notes at the time
outstanding given pursuant to Section 6.05 of this Supplemental Indenture,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Supplemental Indenture.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel that conforms to Section 11.04.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers, except conduct that constitutes willful misconduct, negligence or bad
faith.
(e) The Trustee may consult with counsel, and the Trustee will not be
liable for any action it takes or omits in reliance on, and in accordance with,
written advice of counsel.
(f) The Trustee will not be required to investigate any facts or
matters stated in any document, but if it decides to investigate any matters or
facts, the Trustee or its agents or attorneys will be entitled to examine the
books, records and premises of the Company.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any Affiliate of the Company with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee (i) is not responsible
for and makes no representation as to the validity or adequacy of this
Supplemental Indenture, (ii) shall not be accountable for the Company's use of
the proceeds from the Notes and (iii) shall not be responsible for any statement
of the Company in this Supplemental Indenture, other than the Trustee's
certificate of authentication, or in any prospectus used in the sale of any of
the Notes, other than statements, if any, provided in writing by the Trustee for
use in such prospectus.
SECTION 7.05. NOTICE OF DEFAULTS. The Trustee will give to the Holders
notice of any Default with regard to the Notes actually known to a Responsible
Officer within 90 days after receipt of such knowledge and in the manner and to
the extent provided in TIA ss. 313(c), and otherwise as provided in Section
11.02 of this Supplemental Indenture; PROVIDED, HOWEVER, that except in the case
of a Default in payment of the principal of, premium, if any, or interest on any
Note, the Trustee will be protected in withholding notice of Default if and so
long as a committee of its Responsible Officers in good faith determines that
withholding of the notice is in the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE. Within 60 days after each October 15
beginning with the October 15 following the date of this Supplemental Indenture,
the Trustee will mail to each Holder, at the name and address which appears on
the registration books of the Company, and to each Holder who has, within the
two years preceding the mailing, filed that person's name and address with the
Trustee for that purpose and each Holder whose name and address have been
furnished to the Trustee pursuant to Section 2.05, a brief report dated as of
that October 15 which complies with TIA ss. 313(a). Reports to Noteholders
pursuant to this Section 7.06 shall be transmitted in the manner and to the
extent provided in TIA ss. 313(c). The Trustee also will comply with TIA ss.
313(b).
A copy of each report will at the time of its mailing to Holders be
filed with each stock exchange on which the Notes are listed and also with the
SEC. The Company will promptly notify the Trustee when the Notes are listed on
any stock exchange and of any delisting of the Notes.
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SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts.
The Company shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorney's fees) incurred by it in
connection with the administration of the trust created by this Supplemental
Indenture and the performance of its duties under this Supplemental Indenture.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent. The Company need not reimburse any expense or indemnify
against any loss, expense or liability incurred by the Trustee to the extent it
is due to the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's obligations to make payments to the Trustee
under this Section 7.07, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, other than money or property
held in trust to pay principal or interest on particular Notes. Those
obligations of the Company shall survive the satisfaction and discharge of this
Supplemental Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 6.01(6) or (7) hereof occurs, the expenses and the
compensation for the services of the Trustee are intended to constitute expenses
of administration under any Bankruptcy Law.
For purposes of this Section 7.07, "Trustee" will include any
predecessor Trustee, but the willful misconduct, negligence or bad faith of any
Trustee shall not affect the rights of any other Trustee under this Section
7.07.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in aggregate
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company and may appoint a successor Trustee. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
No removal or appointment of a Trustee will be valid if that removal or
appointment would conflict with any law applicable to the Company.
A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee will, subject to the Lien provided for in Section 7.07,
transfer all property held by it as Trustee to the successor Trustee, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Supplemental Indenture. A successor Trustee will mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another Person, the resulting, surviving
or transferee Person will, without any further act, be the successor Trustee.
If at the time a successor by merger, conversion or consolidation to
the Trustee succeeds to the trusts created by this Supplemental Indenture any of
the Notes have been authenticated but not delivered, the successor to the
Trustee may adopt the certificate of authentication of the predecessor Trustee,
and deliver the Notes which were authenticated by the predecessor Trustee; and
if at that time any of the Notes have not been authenticated, the successor to
the Trustee may authenticate those Notes in its own name as the successor to the
Trustee; and in either case the certificates of authentication will have the
full force provided in this Supplemental Indenture for certificates of
authentication.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee will at all
times satisfy the requirements of TIA ss. 310(a). The Trustee will at all times
have (or shall be a member of a bank holding company system whose parent
corporation has) a combined capital and surplus of at least $50,000,000 as set
forth in its most recently published annual report of condition, which will be
deemed for this paragraph to be its combined capital and surplus. The Trustee
will comply with TIA ss. 310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS. The Trustee shall
comply with TIA ss. 311(a), excluding any creditor relationship listed in TIA
ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA
ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a Board
Resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE. Upon the Company's
exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Notes on the date the conditions set forth below
are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Supplemental Indenture referred to in (a)
and (b) below, and to have satisfied all its other obligations under such Notes
and this Supplemental Indenture (and the Trustee, on written demand of and at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in Section 8.04 hereof,
and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Notes when such payments are
due, (b) the Company's obligations with respect to such Notes under Article 2
and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE. Upon the Company's exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, the Company
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.14, 4.15, 4.16, 4.17, 4.18 hereof and
clause (2) of Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such
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omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Supplemental Indenture and such Notes shall be unaffected thereby. In addition,
upon the Company's exercise under Section 8.01 hereof of the option applicable
to this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(4) and (5) hereof shall not
constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. The following
shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding U.S. Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date,
as the case may be, and any other amounts owing under this Supplemental
Indenture, if in the case of an optional redemption date prior to
electing to exercise either Legal Defeasance or Covenant Defeasance,
the Company has delivered to the Trustee an irrevocable notice to
redeem all of the outstanding Notes on such redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) since the date of this
Supplemental Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this
Supplemental Indenture or any other material
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agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied
with; and
(h) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that, assuming no intervening bankruptcy of
the Company between the date of deposit and the 91st day following the
date of deposit and that no Holder is an insider of the Company, after
the 91st day following the date of deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to Section 8.06 hereof, all money
and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Supplemental Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the written request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY. Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium, if
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any, or interest has become due and payable shall be paid to the Company on its
written request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the NEW YORK TIMES and THE
WALL STREET JOURNAL (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Supplemental Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03 hereof, as the case may be;
PROVIDED, HOWEVER, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES. Notwithstanding
Section 9.02 of this Supplemental Indenture, the Company and the Trustee may
amend or supplement this Supplemental Indenture or the Notes without the consent
of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes or to alter the provisions of Article 2
hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(c) to provide for the assumption of the Company's obligations
to the Holders by a successor to the Company pursuant to Article 5
hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect in any material respect the rights hereunder of any
Holder of the Note;
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Supplemental Indenture under the
TIA; or
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(f) to evidence and provide for the acceptance of appointment
under this Supplemental Indenture of a successor Trustee.
Upon the written request of the Company accompanied by, to the extent
necessary, a Board Resolution authorizing the execution of any such amended or
supplemental Supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental Supplemental Indenture
authorized or permitted by the terms of this Supplemental Indenture and to make
any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or
supplemental Supplemental Indenture that affects its own rights, duties or
immunities under this Supplemental Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES. Except as provided
below in this Section 9.02, the Company and the Trustee may amend or supplement
this Supplemental Indenture (including Section 4.13 hereof), and the Notes with
the written consent of the Holders of at least a majority in principal amount of
the Notes then outstanding voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Supplemental Indenture or the Notes may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Notes voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).
Upon the written request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental Supplemental Indenture unless such amended or supplemental
Supplemental Indenture directly affects the Trustee's own rights, duties or
immunities under this Supplemental Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental Supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental
Supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive in writing compliance in a
particular instance by the Company with any provision of this Supplemental
Indenture or the Notes.
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However, without the written consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the amount of Notes whose Holders must consent to
an amendment;
(b) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Notes;
(c) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption or reduce the redemption price
therefor;
(d) make any Notes payable in money other than that stated in
the Notes;
(e) make any change in provisions of this Supplemental
Indenture protecting the right of each Holder to receive payment of
principal of and interest on such Note on or after the due date thereof
or to bring suit to enforce such payment, or permitting Holders of a
majority in principal amount of Notes to waive Defaults or Events of
Default;
(f) after the Company's obligation to purchase Notes arises
thereunder, amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control, modify any of the provisions
or definitions with respect thereto; or
(g) modify or change any provision of this Supplemental
Indenture or the related definitions affecting the subordination or
ranking of the Notes in a manner which adversely affects the Holders.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment or
supplement to this Supplemental Indenture or the Notes shall be set forth in a
amended or supplemental Supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder of a Note and every subsequent Holder of a Note
or portion of a Note that evidences the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
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Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall sign
any amended or supplemental Supplemental Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. The Company may not sign an
amendment or supplemental Supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying conclusively upon, in addition to the documents required by
Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Supplemental Indenture.
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE. This Supplemental Indenture
will be discharged and will cease to be of further effect (except as to
surviving rights or registration of transfer or exchange of the Notes, as
expressly provided for in this Supplemental Indenture) as to all outstanding
Notes, when:
(a) either:
(i) all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes that have been replaced or paid
and Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds
in an amount sufficient to pay and discharge the entire Indebtedness on
the Notes not theretofore delivered to the Trustee for cancellation,
for principal of, premium, if any, and interest on the Notes to the
date of deposit together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be;
(b) the Company has paid all other sums payable under this Supplemental
Indenture by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent under this
Supplemental Indenture relating to the satisfaction and discharge of this
Supplemental Indenture have been complied with.
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SECTION 10.02. APPLICATION OF TRUST MONEY. Subject to the provisions of
Section 8.06, all money deposited with the Trustee pursuant to Section 10.01
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Supplemental Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 10.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Supplemental Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
10.01; PROVIDED that if the Company has made any payment of principal of,
premium, if any, or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities held
by the Trustee or Paying Agent.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
TIA ss.318(c), the imposed duties shall control.
SECTION 11.02. NOTICES. Any notice or communication by the Company or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company:
iStar Financial Inc.
1114 Avenue of the Americas, 27th Floor
New York, NY 10036
Facsimile: (212) 930-9494
Attention: Chief Executive Officer
With a copy to:
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, NY 10166-0153
Facsimile: (212) 878-8375
Attention: Kathleen L. Werner, Esq.
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If to the Trustee:
State Street Bank and Trust Company, N.A.
61 Broadway
New York, NY 10006
Attention: Ward Spooner, Corporate Trust Department
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES. Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Supplemental Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Supplemental Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Supplemental Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
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SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Supplemental Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS. No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes, this Supplemental Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
SECTION 11.08. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE NOTES
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Supplemental Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Supplemental Indenture.
SECTION 11.10. SUCCESSORS. All agreements of the Company in this
Supplemental Indenture and the Notes shall bind its successors. All agreements
of the Trustee in this Supplemental Indenture shall bind its successors.
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SECTION 11.11. SEVERABILITY. In case any provision in this Supplemental
Indenture or in the Notes 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 11.12. COUNTERPART ORIGINALS. The parties may sign any number
of copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.14. CONFLICTS WITH INDENTURE. If any provision of this
Supplemental Indenture is inconsistent with any provision of the Indenture, the
provision of this Supplemental Indenture will control with regard to the Notes.
[Signatures on following page]
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SIGNATURES
Dated as of August 16, 2001
iSTAR FINANCIAL INC.
By:
-------------------------------------
Name: Spencer B. Haber
Title: President and Chief Financial
Officer
STATE STREET BANK AND TRUST COMPANY,
N.A., not in its individual capacity,
but solely as Trustee
By:
-------------------------------------
Name:
Title:
EXHIBIT A
[Face of Note]
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE SUPPLEMENTAL INDENTURE]
================================================================================
CUSIP/CINS ____________
8 3/4% Senior Notes due 2008
No. ___ $___________
iSTAR FINANCIAL INC.
promises to pay to ___________________, or registered assigns, the principal sum
of ______ Dollars on August 15, 2008.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated: August 16, 2001
iSTAR FINANCIAL INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
SEAL
This is one of the Notes referred to in the within-mentioned Supplemental
Indenture:
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
By:
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Authorized Signatory
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[Back of Note]
83/4% Senior Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. iStar Financial Inc., a Maryland corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 8
3/4% per annum from August 16, 2001 until maturity. The Company will pay
interest semi-annually in arrears on February 15 and August 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each
an "Interest Payment Date"). Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from August 16, 2001; PROVIDED that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; PROVIDED,
FURTHER, that the first Interest Payment Date shall be February 15, 2002. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the February 1 or August 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and PROVIDED that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, and premium, if any, on,
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent. Such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. The Company
reserves the right to pay interest to Holders of Notes by check mailed to such
Holders at their registered addresses or by wire transfer to Holders of at least
$5 million aggregate principal amount of Notes.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, N.A., the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of February 5, 2001, as supplemented by a Supplemental Indenture dated as of
August 16, 2001 (collectively, the "Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in
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the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
indenture shall govern and be controlling. The Notes are obligations of the
Company limited to $500 million in aggregate principal amount, of which the
Company is issuing $350 million in aggregate principal amount on the Issue Date.
5. OPTIONAL REDEMPTION.
OPTIONAL REDEMPTION. (a) At any time on or prior to August 15, 2008,
the Notes may be redeemed or purchased in whole but not in part at the Company's
option at a price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the date
of redemption or purchase (the "Redemption Date") (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date). Such redemption or purchase may be made upon
notice mailed by first-class mail to each Holder's registered address, not less
than 30 nor more than 60 days prior to the Redemption Date.
"APPLICABLE PREMIUM" means, with respect to a Note at any Redemption
Date, the greater of: (1) 1.0% of the principal amount of such Note; and (2) the
excess of (a) the present value at such Redemption Date of (i) the redemption
price of such Note on August 15, 2008 plus (ii) all required remaining scheduled
interest payments due on such Note through August 15, 2008, computed using a
discount rate equal to the Treasury Rate plus 50 basis points; over (b) the
principal amount of such Note on such Redemption Date. Calculation of the
Applicable Premium will be made by the Company or on behalf of the Company by
such Person as the Company shall designate; PROVIDED, HOWEVER, that such
calculation shall not be a duty or obligation of the Trustee.
"TREASURY RATE" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to August 15, 2008;
PROVIDED, HOWEVER, that if the period from such Redemption Date to August 15,
2008 is not equal to the constant maturity of the United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the period from such Redemption Date
to August 15, 2008 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from time to
time, on or prior to August 15, 2004, the Company may, at its option, use the
net cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 108.75% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; PROVIDED that:
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(1) at least 65% of the principal amount of Notes issued under
the Indenture remains outstanding immediately after any such
redemption; and
(2) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all of the outstanding Notes at a purchase price
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, thereon to the date of repurchase.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company and the Trustee may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture. The Company need not exchange or register
the transfer of any Note or portion of a Note selected for redemption, except
for the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the written consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class. Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that
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would provide any additional rights or benefits to the Holders of the Notes or
that does not adversely affect in any material respects the rights under the
Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act or to evidence and provide for the acceptance of appointment under
the Indenture of a successor Trustee.
12. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in
writing in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
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contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
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The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
iStar Financial Inc.
1114 Avenue of the Americas, 27th Floor
New York, NY 10036
Attention: Investor Relations
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:_______________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the following box: / /
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.13 of the Indenture, state the amount you elect to
have purchased:
$______________
Date: _______________
Your Signature: _____________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:______________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount of
Amount of Amount of this Global Note Signature of
decrease in increase in following such authorized officer of
Principal Amount Principal Amount decrease Trustee or Note
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
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