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AMENDED
AND RESTATED TRUST AGREEMENT
among
NORTHSTAR
REALTY FINANCE LIMITED PARTNERSHIP ,
as
Depositor
NORTHSTAR
REALTY FINANCE CORP. ,
as
Guarantor
WILMINGTON
TRUST COMPANY
as
Property Trustee
WILMINGTON
TRUST COMPANY
as
Delaware Trustee
and
THE
ADMINISTRATIVE TRUSTEES NAMED HEREIN
as
Administrative Trustees
________________
Dated
as of October 6, 2006
NORTHSTAR
REALTY FINANCE TRUST VI
TABLE OF CONTENTS
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Page
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ARTICLE
I.
Defined
Terms
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1
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SECTION
1.1
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Definitions
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1
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ARTICLE
II.
The
Trust
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10
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SECTION
2.1
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Name
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10
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SECTION
2.2
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Office
of the Delaware Trustee; Principal Place of
Business
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10
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SECTION
2.3
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Initial
Contribution of Trust Property; Fees, Costs and
Expenses
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10
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SECTION
2.4
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Purposes
of Trust
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11
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SECTION
2.5
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Authorization
to Enter into Certain Transactions
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11
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SECTION
2.6
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Assets
of Trust
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14
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SECTION
2.7
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Title
to Trust Property
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14
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ARTICLE
III.
Payment
Account; Paying Agents
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14
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SECTION
3.1
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Payment
Account
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14
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SECTION
3.2
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Appointment
of Paying Agents
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15
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ARTICLE
IV.
Distributions;
Redemption
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15
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SECTION
4.1
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Distributions
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15
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SECTION
4.2
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Redemption
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16
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SECTION
4.3
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Subordination
of Common Securities
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19
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SECTION
4.4
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Payment
Procedures
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20
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SECTION
4.5
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Withholding
Tax
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20
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SECTION
4.6
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Tax
Returns and Other Reports
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20
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SECTION
4.7
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Payment
of Taxes, Duties, Etc. of the Trust
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21
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SECTION
4.8
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Payments
under Indenture or Pursuant to Direct Actions
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21
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SECTION
4.9
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Exchanges
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21
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SECTION
4.10
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Calculation
Agent
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22
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SECTION
4.11
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Certain
Accounting Matters
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22
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ARTICLE
V.
Securities
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23
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SECTION
5.1
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Initial
Ownership
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23
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SECTION
5.2
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Authorized
Trust Securities
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23
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SECTION
5.3
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Issuance
of the Common Securities; Subscription and Purchase of
Notes
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23
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SECTION
5.4
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The
Securities Certificates
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24
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SECTION
5.5
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Rights
of Holders
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25
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SECTION
5.6
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Book-Entry
Preferred Securities
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25
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SECTION
5.7
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Registration
of Transfer and Exchange of Preferred Securities
Certificates
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27
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SECTION
5.8
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Mutilated,
Destroyed, Lost or Stolen Securities Certificates
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28
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SECTION
5.9
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Persons
Deemed Holders
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29
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SECTION
5.10
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Cancellation
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29
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SECTION
5.11
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Ownership
of Common Securities by Depositor
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29
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SECTION
5.12
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Restricted
Legends
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30
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SECTION
5.13
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Form
of Certificate of Authentication
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32
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ARTICLE
VI.
Meetings;
Voting; Acts of Holders
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33
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SECTION
6.1
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Notice
of Meetings
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33
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SECTION
6.2
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Meetings
of Holders of the Preferred Securities
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33
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SECTION
6.3
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Voting
Rights
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33
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SECTION
6.4
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Proxies,
Etc
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34
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SECTION
6.5
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Holder
Action by Written Consent
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34
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SECTION
6.6
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Record
Date for Voting and Other Purposes
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34
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SECTION
6.7
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Acts
of Holders
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34
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SECTION
6.8
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Inspection
of Records
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35
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SECTION
6.9
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Limitations
on Voting Rights
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35
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SECTION
6.10
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Acceleration
of Maturity; Rescission of Annulment; Waivers of Past
Defaults
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36
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ARTICLE
VII.
Representations
and Warranties
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39
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SECTION
7.1
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Representations
and Warranties of the Property Trustee and the Delaware
Trustee
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39
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SECTION
7.2
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Representations
and Warranties of Depositor
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40
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ARTICLE
VIII.
The
Trustees
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41
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SECTION
8.1
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Number
of Trustees
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41
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SECTION
8.2
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Property
Trustee Required
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41
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SECTION
8.3
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Delaware
Trustee Required
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41
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SECTION
8.4
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Appointment
of Administrative Trustees
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42
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SECTION
8.5
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Duties
and Responsibilities of the Trustees
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42
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SECTION
8.6
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Notices
of Defaults and Extensions
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44
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SECTION
8.7
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Certain
Rights of Property Trustee
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44
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SECTION
8.8
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Delegation
of Power
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46
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SECTION
8.9
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May
Hold Securities
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46
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SECTION
8.10
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Compensation;
Reimbursement; Indemnity
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47
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SECTION
8.11
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Resignation
and Removal; Appointment of Successor
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48
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SECTION
8.12
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Acceptance
of Appointment by Successor
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49
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SECTION
8.13
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Merger,
Conversion, Consolidation or Succession to
Business
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49
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SECTION
8.14
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Not
Responsible for Recitals or Issuance of
Securities
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50
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SECTION
8.15
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Property
Trustee May File Proofs of Claim
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50
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SECTION
8.16
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Reports
to and from the Property Trustee
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50
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ARTICLE
IX.
Termination,
Liquidation and Merger
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51
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SECTION
9.1
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Dissolution
Upon Expiration Date
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51
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SECTION
9.2
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Early
Termination
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51
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SECTION
9.3
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Termination
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52
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SECTION
9.4
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Liquidation
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52
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SECTION
9.5
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Mergers,
Consolidations, Amalgamations or Replacements of
Trust
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53
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ARTICLE
X.
Information
to Purchaser
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55
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SECTION
10.1
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Depositor
Obligations to Purchaser
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55
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SECTION
10.2
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Property
Trustee’s Obligations to Purchaser
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55
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ARTICLE
XI.
Miscellaneous
Provisions
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55
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SECTION
11.1
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Limitation
of Rights of Holders
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55
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SECTION
11.2
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Agreed
Tax Treatment of Trust and Trust Securities
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55
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SECTION
11.3
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Amendment
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56
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SECTION
11.4
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Separability
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57
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SECTION
11.5
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Governing
Law
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57
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SECTION
11.6
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Successors
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57
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SECTION
11.7
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Headings
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58
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SECTION
11.8
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Reports,
Notices and Demands
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58
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SECTION
11.9
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Agreement
Not to Petition
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58
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Exhibit
A
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Certificate
of Trust of NorthStar Realty Finance Trust VI
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Exhibit
B
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Form
of Common Securities Certificate
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Exhibit
C
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Form
of Preferred Securities Certificate
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Exhibit
D
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Junior
Subordinated Indenture
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Exhibit
E
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Form
of Transferee Certificate to be Executed by Transferees other
than QIBs
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Exhibit
F
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Form
of Transferor Certificate to be Executed by QIBs
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Exhibit
G
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Form
of Officer’s Financial Certificate
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Exhibit
H
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Form
of Officer’s Certificate pursuant to Section
8.16(a)
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Schedule
A
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Calculation
of LIBOR
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AMENDED
AND RESTATED TRUST AGREEMENT, dated as of October 6, 2006,
among (i) NorthStar Realty Finance Limited Partnership, a
Delaware limited partnership (including any successors or
permitted assigns, the “Depositor”), (ii)
NorthStar Realty Finance Corp., a Maryland corporation
(including any successors or permitted assigns, the
“Guarantor”), (iii) Wilmington Trust Company, a
Delaware banking corporation, as property trustee (in such
capacity, the “Property Trustee”), (iv) Wilmington
Trust Company, a Delaware banking corporation, as Delaware
trustee (in such capacity, the “Delaware
Trustee”), (v) David T. Hamamoto, an individual, Richard
J. McCready, an individual, and Andrew C. Richardson, an
individual, each of whose address is c/o NorthStar Realty
Finance Limited Partnership, c/o NorthStar Realty Finance
Corp., 527 Madison Avenue, New York, NY 10022, as
administrative trustees (in such capacities, each an
“Administrative Trustee” and, collectively, the
“Administrative Trustees” and, together with the
Property Trustee and the Delaware Trustee, the
“Trustees”) and (vi) the several Holders, as
hereinafter defined.
WITNESSETH
WHEREAS
,
the Depositor, the Property Trustee and the Delaware Trustee
have heretofore created a Delaware statutory trust pursuant to
the Delaware Statutory Trust Act by entering into a Trust
Agreement, dated as of September 29, 2006 (the “Original
Trust Agreement”), and by executing and filing with the
Secretary of State of the State of Delaware the Certificate of
Trust, substantially in the form attached as
Exhibit A ;
and
WHEREAS
, the
Depositor
and the Trustees desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide
for, among other things, (i) the issuance of the Common
Securities by the Trust to the Depositor, (ii) the issuance
and sale of the Preferred Securities by the Trust pursuant to
the Purchase Agreement and (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in
and to the Notes;
NOW,
THEREFORE, in
consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each
party, for the benefit of the other parties and for the
benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE
I.
DEFINED
TERMS
SECTION
1.1.
Definitions.
For
all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise
requires:
(a)
the
terms defined in this
Article I have
the meanings assigned to them in this
Article I ;
(b)
the
words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”;
(c)
all
accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally
accepted accounting principles;
(d)
unless
the context otherwise requires, any reference to an
“Article”, a “Section”, a
“Schedule” or an “Exhibit” refers to
an Article, a Section, a Schedule or an Exhibit, as the case
may be, of or to this Trust Agreement;
(e)
the
words “hereby”, “herein”,
“hereof” and “hereunder” and other
words of similar import refer to this Trust Agreement as a
whole and not to any particular Article, Section or other
subdivision;
(f)
a
reference to the singular includes the plural and vice versa;
and
(g)
the
masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter
genders.
“Act”
has the meaning specified in
Section 6.7 .
“Additional
Interest” has the meaning specified in
Section 1.1 of
the Indenture.
“Additional
Interest Amount” means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, the
amount of Additional Interest paid by the Depositor on a Like
Amount of Notes for such period.
“Additional
Taxes” has the meaning specified in
Section 1.1 of
the Indenture.
“Additional
Tax Sums” has the meaning specified in
Section 10.5 of
the Indenture.
“Administrative
Trustee” means each of the Persons identified as an
“Administrative Trustee” in the preamble to this
Trust Agreement, solely in each such Person’s capacity
as Administrative Trustee of the Trust and not in such
Person’s individual capacity, or any successor
Administrative Trustee appointed as herein
provided.
“Affiliate”
of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the
purposes of this definition, “control” when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
“Applicable
Depositary Procedures” means, with respect to any
transfer or transaction involving a Book-Entry Preferred
Security, the rules and procedures of the Depositary for such
Book-Entry Preferred Security, in each case to the extent
applicable to such transaction and as in effect from time to
time.
“Bankruptcy
Event” means, with respect to any Person:
(a)
the entry of a decree or order by a court having jurisdiction
in the premises (i) judging such Person a bankrupt or
insolvent, (ii) approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or
in respect of such Person under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar
law, (iii) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of
such Person or of any substantial part of its property or (iv)
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of sixty (60) consecutive days; or
(b)
the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable
Bankruptcy Law, or the consent by it to the filing of any such
petition or to the appointment of a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt or insolvent, or
the taking of corporate action by such Person in furtherance
of any such action.
“Bankruptcy
Law” means all Federal and state bankruptcy, insolvency,
reorganization and other similar laws, including the United
States Bankruptcy Code.
“Book-Entry
Preferred Security” means a Preferred Security, the
ownership and transfers of which shall be made through book
entries by a Depositary.
“Business
Day” means a day other than (a) a Saturday or Sunday,
(b) a day on which banking institutions in the City of New
York are authorized or required by law or executive order to
remain closed or (c) a day on which the Corporate Trust Office
is closed for business.
“Calculation
Agent” has the meaning specified in
Section 4.10 .
“Change
of Control” has the meaning specified in the
Indenture.
“Closing
Date” has the meaning specified in the Purchase
Agreement.
“Code”
means the United States Internal Revenue Code of 1986, as
amended.
“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 Trust Agreement such
Commission is not existing and performing the duties assigned
to it, then the body performing such duties at such
time.
“Common
Securities Certificate” means a certificate evidencing
ownership of Common Securities, substantially in the form
attached as
Exhibit B .
“Common
Security” means a common security of the Trust,
denominated as such and representing an undivided beneficial
interest in the assets of the Trust, having a Liquidation
Amount of $1,000 and having the terms provided therefor in
this Trust Agreement.
“Corporate
Trust Office” means the principal office of the Property
Trustee at which any particular time its corporate trust
business shall be administered, which office at the date of
this Trust Agreement is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Capital Markets.
“Definitive
Preferred Securities Certificates” means Preferred
Securities issued in certificated, fully registered form that
are not Global Preferred Securities.
“Delaware
Statutory Trust Act” means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code § 3801 et seq., or any
successor statute thereto, in each case as amended from time
to time.
“Delaware
Trustee” means the Person identified as the
“Delaware Trustee” in the preamble to this Trust
Agreement, solely in its capacity as Delaware Trustee of the
Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware Trustee
appointed as herein provided.
“Depositary”
means an organization registered as a clearing agency under
the Exchange Act that is designated as Depositary by the
Depositor or any successor thereto. DTC will be the initial
Depositary.
“Depositary
Participant” means a broker, dealer, bank, other
financial institution or other Person for whom from time to
time the Depositary effects book-entry transfers and pledges
of securities deposited with the Depositary.
“Depositor”
has the meaning specified in the preamble to this Trust
Agreement and any successors and permitted
assigns.
“Depositor
Affiliate” has the meaning specified in
Section 4.9 .
“Distribution
Date” has the meaning specified in
Section 4.1(a)(i) .
“Distributions”
means amounts payable in respect of the Trust Securities as
provided in
Section 4.1 .
“DTC”
means The Depository Trust Company or any successor
thereto.
“Early
Termination Event” has the meaning specified in
Section 9.2 .
“Event
of Default” means any one of the following events
(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or
governmental body):
(a)
the occurrence of a Note Event of Default; or
(b)
default by the Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default
for a period of thirty (30) days; or
(c)
default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable;
or
(d)
default in the performance, or breach, in any material respect
of any covenant or warranty of the Trustees in this Trust
Agreement (other than those specified in clause (b) or (c)
above) and continuation of such default or breach for a period
of thirty (30) days after there has been given, by registered
or certified mail, to the Trustees and to the Depositor by the
Holders of at least twenty-five percent (25%) in aggregate
Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or
(e)
the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been
appointed within ninety (90) days thereof.
“Exchange
Act” means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time
to time.
“Expiration
Date” has the meaning specified in
Section 9.1 .
“Fiscal
Year” shall be the fiscal year of the Trust, which shall
be the calendar year, or such other period as is required by
the Code.
“Global
Preferred Security” means a Preferred Securities
Certificate evidencing ownership of Book-Entry Preferred
Securities.
“Guarantor”
has the meaning specified in the preamble to this Trust
Agreement and any successors and permitted
assigns.
“Holder”
means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such
Person shall be a beneficial owner within the meaning of the
Delaware Statutory Trust Act.
“Indemnified
Person” has the meaning specified in
Section 8.10(c) .
“Indenture”
means the Junior Subordinated Indenture executed and delivered
by the Depositor, the Guarantor and the Note Trustee
contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Notes,
a copy of which is attached hereto as
Exhibit D ,
as amended or supplemented from time to time.
“Indenture
Redemption Price” has the meaning specified in
Section 4.2(c) .
“Interest
Payment Date” has the meaning specified in
Section 1.1 of
the Indenture.
“Investment
Company Act” means the Investment Company Act of 1940,
or any successor statute thereto, in each case as amended from
time to time.
“Investment
Company Event” has the meaning specified in
Section 1.1 of
the Indenture.
“LIBOR”
has the meaning specified in
Schedule A .
“LIBOR
Business Day” has the meaning specified in
Schedule A .
“LIBOR
Determination Date” has the meaning specified in
Schedule A .
“Lien”
means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever.
“Like
Amount” means (a) with respect to a redemption of any
Trust Securities, Trust Securities having a Liquidation Amount
equal to the principal amount of Notes to be contemporaneously
redeemed or paid at maturity in accordance with the Indenture,
the proceeds of which will be used to pay the Redemption Price
of such Trust Securities, (b) with respect to a distribution
of Notes to Holders of Trust Securities in connection with a
dissolution of the Trust, Notes having a principal amount
equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Notes are distributed and (c) with respect
to any distribution of Additional Interest Amounts to Holders
of Trust Securities, Notes having a principal amount equal to
the Liquidation Amount of the Trust Securities in respect of
which such distribution is made.
“Liquidation
Amount” means the stated amount of $1,000 per Trust
Security.
“Liquidation
Date” means the date on which assets are to be
distributed to Holders in accordance with
Section 9.4(a) hereunder
following dissolution of the Trust.
“Liquidation
Distribution” has the meaning specified in
Section 9.4(d) .
“Majority
in Liquidation Amount of the Preferred Securities” means
Preferred Securities representing more than fifty percent
(50%) of the aggregate Liquidation Amount of all (or a
specified group of) then Outstanding Preferred
Securities.
“Note
Event of Default” means any “Event of
Default” specified in
Section 5.1 of
the Indenture.
“Note
Redemption Date” means, with respect to any Notes to be
redeemed under the Indenture, the date fixed for redemption of
such Notes under the Indenture.
“Note
Trustee” means the Person identified as the
“Trustee” in the Indenture, solely in its capacity
as Trustee pursuant to the Indenture and not in its individual
capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the
Indenture.
“Notes”
means the Depositor’s Junior Subordinated Notes issued
pursuant to the Indenture.
“Officer’s
Certificate” means a certificate signed by the Chief
Executive Officer, the President, an Executive Vice President,
the Chief Financial Officer, the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, of the
Depositor or the Guarantor, as applicable, and delivered to
the Trustees. Any Officer’s Certificate delivered with
respect to compliance with a condition or covenant provided
for in this Trust Agreement (other than the certificate
provided pursuant to
Section 8.16(a) )
shall include:
(a)
a statement by each officer signing the Officer’s
Certificate that such officer has read the covenant or
condition and the definitions relating thereto;
(b)
a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the
Officer’s Certificate;
(c)
a statement that such officer has made such examination or
investigation as, in such officer’s opinion, is
necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d)
a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied
with.
“Operative
Documents” means the Purchase Agreement, the Indenture,
the Trust Agreement, the Notes and the Trust
Securities.
“Opinion
of Counsel” means a written opinion of counsel, who may
be counsel for, or an employee of, the Depositor or the
Guarantor or any Affiliate of the Depositor or the
Guarantor.
“Original
Issue Date” means the date of original issuance of the
Trust Securities.
“Original
Trust Agreement” has the meaning specified in the
recitals to this Trust Agreement.
“Outstanding,”
when used with respect to any Trust Securities, means, as of
the date of determination, all Trust Securities theretofore
executed and delivered under this Trust Agreement,
except:
(a)
Trust Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for
cancellation;
(b)
Trust Securities for which payment or redemption money in the
necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent in trust for the Holders
of such Trust Securities; provided, that if such Trust
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Trust Agreement;
and
(c)
Trust Securities that have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and
delivered pursuant to the provisions of this Trust Agreement,
unless proof satisfactory to the Property Trustee is presented
that any such Trust Securities are held by Holders in whose
hands such Trust Securities are valid, legal and binding
obligations of the Trust;
provided,
that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Preferred Securities
owned by the Depositor, the Guarantor, any Trustee or any
Affiliate of the Depositor, the Guarantor or of any Trustee
shall be disregarded and deemed not to be Outstanding, except
that (i) in determining whether any Trustee shall be protected
in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred
Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time
when all of the Outstanding Preferred Securities are owned by
the Depositor, the Guarantor, one or more of the Trustees
and/or any such Affiliate. Preferred Securities so owned that
have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee’s right so to act
with respect to such Preferred Securities and that the pledgee
is not the Depositor, the Guarantor, any Trustee or any
Affiliate of the Depositor, the Guarantor or of any
Trustee.
“Owner”
means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the
Depositary or, if a Depositary Participant is not the
beneficial owner, then the beneficial owner as reflected in
the records of the Depositary Participant.
“Paying
Agent” means any Person authorized by the Administrative
Trustees to pay Distributions or other amounts in respect of
any Trust Securities on behalf of the Trust.
“Payment
Account” means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for
the benefit of the Holders in which all amounts paid in
respect of the Notes will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the
Holders in accordance with
Sections 3.1 ,
4.1 and
4.2 .
“Person”
means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock
company, company, limited liability company, trust,
unincorporated association or government, or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“Preferred
Security” means a preferred security of the Trust,
denominated as such and representing an undivided beneficial
interest in the assets of the Trust, having a Liquidation
Amount of $1,000 and having the terms provided therefor in
this Trust Agreement.
“Preferred
Securities Certificate” means a certificate evidencing
ownership of Preferred Securities, substantially in the form
attached as
Exhibit C .
“Property
Trustee” means the Person identified as the
“Property Trustee” in the preamble to this Trust
Agreement, solely in its capacity as Property Trustee of the
Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Property Trustee
appointed as herein provided.
“Purchase
Agreement” means the Purchase Agreement, dated as of
October 6, 2006, executed and delivered by the Trust, the
Depositor, the Guarantor, and the Purchaser.
“Purchaser”
means Merrill Lynch International, whose address is 4 World
Financial Center, 250 Vesey Street, 7th Floor, New York, NY
10080, Attention: Michael Rogozinski, as purchaser of the
Preferred Securities pursuant to the Purchase
Agreement.
“QIB”
means a “qualified institutional buyer” as defined
in Rule 144A under the Securities Act.
“Redemption
Date” means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to
this Trust Agreement; provided, that each Note Redemption Date
and the stated maturity (or any date of principal repayment
upon early maturity) of the Notes shall be a Redemption Date
for a Like Amount of Trust Securities.
“Redemption
Price” means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated
and unpaid Distributions to the Redemption Date, plus the
related amount of the premium, if any, paid by the Depositor
upon the concurrent redemption or payment at maturity of a
Like Amount of Notes.
“Reference
Banks” has the meaning specified in
Schedule A .
“Responsible
Officer” means, with respect to the Property Trustee,
any Senior Vice President, any Vice President, any Assistant
Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any other officer in the Corporate
Trust Office of the Property Trustee with direct
responsibility for the administration of this Trust Agreement
and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such
matter is referred because of that officer’s knowledge
of and familiarity with the particular subject.
“Securities
Act” means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to
time.
“Securities
Certificate” means any one of the Common Securities
Certificates or the Preferred Securities
Certificates.
“Securities
Register” and “Securities Registrar” have
the respective meanings specified in
Section 5.7 .
“Special
Event Redemption Price” has the meaning specified
in
Section 11.2 of
the Indenture.
“Successor
Securities” has the meaning specified in
Section 9.5(a) .
“Tax
Event” has the meaning specified in
Section 1.1 of
the Indenture.
“Trust”
means the Delaware statutory trust known as “NorthStar
Realty Finance Trust VI,” which was created on September
29, 2006, under the Delaware Statutory Trust Act pursuant to
the Original Trust Agreement and the filing of the Certificate
of Trust, and continued pursuant to this Trust
Agreement.
“Trust
Agreement” means this Amended and Restated Trust
Agreement, including all Schedules and Exhibits (other than
Exhibit D), as the same may be modified, amended or
supplemented from time to time in accordance with the
applicable provisions hereof.
“Trustees”
means the Administrative Trustees, the Property Trustee and
the Delaware Trustee, each as defined in this
Article I .
“Trust
Property” means (a) the Notes, (b) any cash on deposit
in, or owing to, the Payment Account and (c) all proceeds and
rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the
Property Trustee pursuant to the trusts of this Trust
Agreement.
“Trust
Security” means any one of the Common Securities or the
Preferred Securities.
ARTICLE
II.
THE
TRUST
SECTION
2.1.
Name.
The
trust continued hereby shall be known as “NorthStar
Realty Finance Trust VI,” as such name may be modified
from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be
sued.
SECTION
2.2.
Office of the Delaware Trustee; Principal Place of
Business.
The
address of the Delaware Trustee in the State of Delaware is
Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Capital Markets, or
such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders, the
Depositor, the Guarantor, the Property Trustee and the
Administrative Trustees. The principal executive office of the
Trust is c/o NorthStar Realty Finance Corp., 527 Madison
Avenue, New York, NY 10022, Attention: Chief Financial
Officer, as such address may be changed from time to time by
the Administrative Trustees following written notice to the
Holders and the other Trustees.
SECTION
2.3.
Initial Contribution of Trust Property; Fees, Costs and
Expenses.
The
Property Trustee acknowledges receipt from the Depositor in
connection with the Original Trust Agreement of the sum of ten
dollars ($10), which constituted the initial Trust Property.
The Depositor shall pay all fees, costs and expenses of the
Trust (except with respect to the Trust Securities) as they
arise or shall, upon request of any Trustee, promptly
reimburse such Trustee for any such fees, costs and expenses
paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such fees, costs or
expenses.
SECTION
2.4.
Purposes of Trust.
(a)
The exclusive purposes and functions of the Trust are to (i) issue
and sell Trust Securities and use the proceeds from such sale to
acquire the Notes and (ii) engage in only those activities
necessary or incidental thereto. The Delaware Trustee, the Property
Trustee and the Administrative Trustees are trustees of the Trust,
and have all the rights, powers and duties to the extent set forth
herein. The Trustees hereby acknowledge that they are trustees of
the Trust.
(b)
So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Trust (or the
Trustees acting on behalf of the Trust) shall not (i) acquire any
investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property
or interests therein, including to Holders, except as expressly
provided herein, (iii) incur any indebtedness for borrowed money or
issue any other debt, (iv) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property, (v)
take or consent to any action that would reasonably be expected to
cause (or, in the case of the Property Trustee, to the actual
knowledge of a Responsible Officer would cause) the Trust to become
taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes, (vi) take or
consent to any action that would cause (or, in the case of the
Property Trustee, to the actual knowledge of a Responsible Officer
would cause) the Notes to be treated as other than indebtedness of
the Depositor for United States federal income tax purposes or
(vii) take or consent to any action that would cause (or, in the
case of the Property Trustee, to the actual knowledge of a
Responsible Officer would cause) the Trust to be deemed to be an
“investment company” required to be registered under
the Investment Company Act.
SECTION
2.5.
Authorization to Enter into Certain Transactions.
(a)
The Trustees shall conduct the affairs of the Trust in accordance
with and subject to the terms of this Trust Agreement. In
accordance with the following provisions (i) and (ii), the Trustees
shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to
the Trustees, under this Trust Agreement, and to perform all acts
in furtherance thereof, including the following:
(i)
As among the Trustees, each Administrative Trustee shall severally
have the power, authority and authorization to act on behalf of the
Trust with respect to the following matters:
(A)
the issuance and sale of the Trust Securities;
(B)
to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, such agreements, documents,
instruments, certificates and other writings as may be necessary or
desirable in connection with the purposes and function of the
Trust, including, without limitation, a common securities
subscription agreement and a junior subordinated note subscription
agreement and to cause the Trust to perform under the Purchase
Agreement;
(C)
assisting in the sale of the Preferred Securities in one or more
transactions exempt from registration under the Securities Act, and
in compliance with applicable state securities or blue sky
laws;
(D)
assisting in the sending of notices (other than notices of default)
and other information regarding the Trust Securities and the Notes
to the Holders in accordance with this Trust
Agreement;
(E)
the appointment of a successor Paying Agent and Calculation Agent
in accordance with this Trust Agreement;
(F)
execution and delivery of the Trust Securities on behalf of the
Trust in accordance with this Trust Agreement;
(G)
execution and delivery of closing certificates, if any, pursuant to
the Purchase Agreement;
(H)
preparation and filing of all applicable tax returns and tax
information reports that are required to be filed on behalf of the
Trust;
(I)
establishing a record date with respect to all actions to be taken
hereunder that require a record date to be established, except as
provided in
Section 6.10(a) ;
(J)
unless otherwise required by the Delaware Statutory Trust Act, to
execute on behalf of the Trust (either acting alone or together
with the other Administrative Trustees) any documents and other
writings that such Administrative Trustee has the power to execute
pursuant to this Trust Agreement; and
(K)
the taking of any action incidental to the foregoing as such
Administrative Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement.
(ii)
As among the Trustees, the Property Trustee shall have the power,
authority and authorization to act on behalf of the Trust with
respect to the following matters:
(A)
the receipt and holding of legal title of the Notes;
(B)
the establishment of the Payment Account;
(C)
the receipt of interest, principal and any other payments made in
respect of the Notes and the holding of such amounts in the Payment
Account;
(D)
the distribution through the Paying Agent of amounts distributable
to the Holders in respect of the Trust Securities;
(E)
the exercise of all of the rights, powers and privileges of a
holder of the Notes in accordance with the terms of this Trust
Agreement;
(F)
the sending of notices of default and other information regarding
the Trust Securities and the Notes to the Holders in accordance
with this Trust Agreement;
(G)
the distribution of the Trust Property in accordance with the terms
of this Trust Agreement;
(H)
to the extent provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation of the
Trust with the Secretary of State of the State of
Delaware;
(I)
application for a taxpayer identification number for the
Trust;
(J)
the authentication of the Preferred Securities as provided in this
Trust Agreement; and
(K)
the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the
Holders (without consideration of the effect of any such action on
any particular Holder).
(b)
In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the
following (and any actions taken by the Depositor in furtherance of
the following prior to the date of this Trust Agreement are hereby
ratified and confirmed in all respects):
(i)
the negotiation of the terms of, and the execution and delivery of,
the Purchase Agreement providing for the sale of the Preferred
Securities in one or more transactions exempt from registration
under the Securities Act, and in compliance with applicable state
securities or blue sky laws; and
(ii)
the taking of any other actions necessary or desirable to carry out
any of the foregoing activities.
(c)
Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that the Trust will not be
taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes, so that the
Notes will be treated as indebtedness of the Depositor for United
States federal income tax purposes and so that the Trust will not
be deemed to be an “investment company” required to be
registered under the Investment Company Act. In this connection,
each Administrative Trustee is authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that such Administrative Trustee determines in his
or her discretion to be necessary or desirable for such purposes,
as long as such action does not adversely affect in any material
respect the interests of the Holders of the Outstanding Preferred
Securities. In no event shall the Administrative Trustees be liable
to the Trust or the Holders for any failure to comply with
this
Section 2.5 to
the extent that such failure results solely from a change in law or
regulation or in the interpretation thereof.
(d)
Any action taken by a Trustee in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with
any Trustee acting on behalf of the Trust, no Person shall be
required to inquire into the authority of such Trustee to bind the
Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of any Trustee as set forth
in this Trust Agreement.
SECTION
2.6.
Assets of Trust.
The
assets of the Trust shall consist of the Trust
Property.
SECTION
2.7.
Title to Trust Property.
(a)
Legal title to all Trust Property shall be vested at all times in
the Property Trustee and shall be held and administered by the
Property Trustee in trust for the benefit of the Trust and the
Holders in accordance with this Trust Agreement.
(b)
The Holders shall not have any right or title to the Trust Property
other than the undivided beneficial interest in the assets of the
Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or
rights of the Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set
forth therein and in this Trust Agreement.
ARTICLE
III.
PAYMENT
ACCOUNT; PAYING AGENTS
SECTION
3.1.
Payment Account.
(a)
On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and the Paying
Agent shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in accordance
with this Trust Agreement. All monies and other property deposited
or held from time to time in the Payment Account shall be held by
the Property Trustee in the Payment Account for the exclusive
benefit of the Holders and for Distribution as herein
provided.
(b)
The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any
other payments with respect to, the Notes. Amounts held in the
Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
SECTION
3.2.
Appointment of Paying Agents.
The
Property Trustee is appointed as the initial Paying Agent and
hereby accepts such appointment. The Paying Agent shall make
Distributions to Holders from the Payment Account and shall
report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent
shall have the revocable power to withdraw funds from the
Payment Account solely for the purpose of making the
Distributions referred to above. The Administrative Trustees
may revoke such power and remove the Paying Agent in their
sole discretion. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon thirty (30)
days’ written notice to the Administrative Trustees and
the Property Trustee. If the Property Trustee shall no longer
be the Paying Agent or a successor Paying Agent shall resign
or its authority to act be revoked, the Administrative
Trustees shall appoint a successor (which shall be a bank or
trust company) to act as Paying Agent. Such successor Paying
Agent appointed by the Administrative Trustees shall execute
and deliver to the Trustees an instrument in which such
successor Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent will hold all sums,
if any, held by it for payment to the Holders in trust for the
benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in
its possession to the Property Trustee. The provisions
of
Article VIII shall
apply to the Property Trustee also in its role as Paying Agent, for
so long as the Property Trustee shall act as Paying Agent and, to
the extent applicable, to any other Paying Agent appointed
hereunder. Any reference in this Trust Agreement to the Paying
Agent shall include any co-paying agent unless the context requires
otherwise.
ARTICLE
IV.
DISTRIBUTIONS;
REDEMPTION
SECTION
4.1.
Distributions.
(a)
The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including any Additional
Interest Amounts) will be made on the Trust Securities at the rate
and on the dates that payments of interest (including any
Additional Interest) are made on the Notes.
Accordingly:
(i)
Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from October 6, 2006, and, except as provided in clause
(ii) below, shall be payable quarterly in arrears on March
30
th ,
June 30
th ,
September 30
th and
December 30
th of
each year, commencing on December 30, 2006. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made
on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the
period from and after each such date until the next succeeding
Business Day), except that, if such Business Day falls in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section
4.1(a)(i), a “Distribution Date”);
(ii)
Distributions shall accumulate in respect of the Trust Securities
at a variable rate per annum, reset quarterly, equal to LIBOR plus
the Margin (as defined in the Indenture) of the Liquidation Amount
of the Trust Securities, such rate being the rate of interest
payable on the Notes. LIBOR shall be determined by the Calculation
Agent in accordance with
Schedule A .
The amount of Distributions payable for any Distribution period
shall be computed and paid on the basis of a 360-day year and the
actual number of days elapsed in the relevant Distribution period.
The amount of Distributions payable for any period shall include
any Additional Interest Amounts in respect of such period;
and
(iii)
Distributions on the Trust Securities shall be made by the Paying
Agent from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of
such Distributions.
(b)
Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities at the
close of business on the relevant record date, which shall be at
the close of business on the fifteenth day (whether or not a
Business Day) preceding the relevant Distribution Date.
Distributions payable on any Trust Securities that are not
punctually paid on any Distribution Date as a result of the
Depositor having failed to make an interest payment under the Notes
will cease to be payable to the Person in whose name such Trust
Securities are registered on the relevant record date, and such
defaulted Distributions and any Additional Interest Amounts will
instead be payable to the Person in whose name such Trust
Securities are registered on the special record date, or other
specified date for determining Holders entitled to such defaulted
Distribution and Additional Interest Amount, established in the
same manner, and on the same date, as such is established with
respect to the Notes under the Indenture.
(c)
As a condition to the payment of any principal of or interest on
the Trust Securities without the imposition of withholding tax, the
Administrative Trustees shall require the previous delivery of
properly completed and signed applicable U.S. federal income tax
certifications (generally, an Internal Revenue Service Form W-9 (or
applicable successor form) in the case of a person that is a
“United States person” within the meaning of Section
7701(a)(30) of the Code or an Internal Revenue Service Form W-8 (or
applicable successor form) in the case of a person that is not a
“United States person” within the meaning of Section
7701(a)(30) of the Code) and any other certification acceptable to
it to enable the Paying Agent to determine its duties and
liabilities with respect to any taxes or other charges that it may
be required to pay, deduct or withhold in respect of such Trust
Securities.
SECTION
4.2.
Redemption.
(a)
On each Note Redemption Date and on the stated maturity (or any
date of principal repayment upon early maturity) of the Notes and
on each other date on (or in respect of) which any principal on the
Notes is repaid, the Trust will be required to redeem a Like Amount
of Trust Securities at the Redemption Price.
(b)
Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than thirty (30)
nor more than sixty (60) days prior to the Redemption Date to each
Holder of Trust Securities to be redeemed, at such Holder’s
address appearing in the Securities Register. All notices of
redemption shall state:
(i)
the Redemption Date;
(ii)
the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the
Indenture, as calculated by the Depositor, together with a
statement that it is an estimate and that the actual Redemption
Price will be calculated by the Calculation Agent on the fifth
Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption
Price on the date that such Redemption Price is
calculated);
(iii)
if less than all the Outstanding Trust Securities are to be
redeemed, the identification (and, in the case of partial
redemption, the respective Liquidation Amounts) and Liquidation
Amounts of the particular Trust Securities to be
redeemed;
(iv)
that on the Redemption Date, the Redemption Price will become due
and payable upon each such Trust Security, or portion thereof, to
be redeemed and that Distributions thereon will cease to accumulate
on such Trust Security or such portion, as the case may be, on and
after said date, except as provided in
Section 4.2(d) ;
(v)
the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price;
and
(vi)
such other provisions as the Property Trustee deems
relevant.
(c)
The Trust Securities (or portion thereof) redeemed on each
Redemption Date shall be redeemed at the Redemption Price with the
proceeds from the contemporaneous redemption or payment at maturity
of Notes. Redemptions of the Trust Securities (or portion thereof)
shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then on
hand and available in the Payment Account for the payment of such
Redemption Price. Under the Indenture, the Notes may be redeemed by
the Depositor on any Interest Payment Date, at the
Depositor’s option, on or after the earlier to occur of (i) a
Change of Control Event (as defined in the Indenture) or (ii)
December 30, 2011, in whole or in part, from time to time at a
redemption price equal to one hundred percent (100%) of the
principal amount thereof, together, in the case of any such
redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption (the
“Indenture Redemption Price”). The Notes may also be
redeemed by the Depositor, at its option, in whole but not in part,
upon the occurrence of an Investment Company Event or a Tax Event
at the Special Event Redemption Price (as set forth in the
Indenture).
(d)
If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then by 10:00 A.M., New York City time,
on the Redemption Date, the Depositor shall deposit sufficient
funds with the Property Trustee to pay the Redemption Price. If
such deposit has been made by such time, then by 12:00 noon, New
York City time, on the Redemption Date, the Property Trustee will,
with respect to Book-Entry Preferred Securities, irrevocably
deposit with the Depositary for such Book-Entry Preferred
Securities, to the extent available therefor, funds sufficient to
pay the applicable Redemption Price and will give such Depositary
irrevocable instructions and authority to pay the Redemption Price
to the Holders of the Preferred Securities. With respect to
Preferred Securities that are not Book-Entry Preferred Securities,
the Property Trustee will irrevocably deposit with the Paying
Agent, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price
to the Holders of the Preferred Securities upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any
Trust Securities (or portion thereof) called for redemption shall
be payable to the Holders of such Trust Securities as they appear
on the Securities Register on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such
deposit, all rights of Holders holding Trust Securities (or portion
thereof) so called for redemption will cease, except the right of
such Holders to receive the Redemption Price and any Distribution
payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest, and, in the case of a
partial redemption, the right of such Holders to receive a new
Trust Security or Securities of authorized denominations, in
aggregate Liquidation Amount equal to the unredeemed portion of
such Trust Security or Securities, and such Securities (or portion
thereof) called for redemption will cease to be Outstanding. In the
event that any date on which any Redemption Price is payable is not
a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so
delayed for the period from and after each such date until the next
succeeding Business Day), except that, if such Business Day falls
in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment
of the Redemption Price in respect of any Trust Securities (or
portion thereof) called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor or the
Guarantor pursuant to the Indenture, Distributions on such Trust
Securities (or portion thereof) will continue to accumulate, as set
forth in
Section 4.1 ,
from the Redemption Date originally established by the Trust for
such Trust Securities(or portion thereof) to the date such
Redemption Price is actually paid, in which case the actual payment
date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e)
Subject to
Section 4.3 (a),
if less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation
Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Preferred Securities based
upon the relative aggregate Liquidation Amounts of the Common
Securities and the Preferred Securities. The Preferred Securities
to be redeemed shall be selected on a pro rata basis based upon
their respective Liquidation Amounts not more than sixty (60) days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for
redemption; provided, however, that with respect to Holders that
would be required to hold less than one hundred (100) but more than
zero (0) Trust Securities as a result of such redemption, the Trust
shall redeem Trust Securities of each such Holder so that after
such redemption such Holder shall hold either one hundred (100)
Trust Securities or such Holder no longer holds any Trust
Securities, and shall use such method (including, without
limitation, by lot) as the Trust shall deem fair and appropriate;
and provided, further, that so long as the Preferred Securities are
Book-Entry Preferred Securities, such selection shall be made in
accordance with the Applicable Depositary Procedures for the
Preferred Securities by such Depositary. The Property Trustee shall
promptly notify the Securities Registrar in writing of the
Preferred Securities (or portion thereof) selected for redemption
and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Preferred Securities that has been
or is to be redeemed.
(f)
The Trust in issuing the Trust Securities may use
“CUSIP” numbers (if then generally in use), and, if so,
the Property Trustee shall indicate the “CUSIP” numbers
of the Trust Securities in notices of redemption and related
materials 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 Trust
Securities or as contained in any notice of redemption and related
materials.
SECTION
4.3.
Subordination of Common Securities.
(a)
Payment of Distributions (including any Additional Interest
Amounts) on, the Redemption Price of and the Liquidation
Distribution in respect of, the Trust Securities, as applicable,
shall be made, pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the
respective Trust Securities; provided, that if on any Distribution
Date, Redemption Date or Liquidation Date an Event of Default shall
have occurred and be continuing, no payment of any Distribution
(including any Additional Interest Amounts) on, Redemption Price of
or Liquidation Distribution in respect of, any Common Security, and
no other payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including
any Additional Interest Amounts) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, or in the case of payment of
the Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to
the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including any Additional Interest
Amounts) on, or the Redemption Price of or the Liquidation
Distribution in respect of, the Preferred Securities then due and
payable.
(b)
In the case of the occurrence of any Event of Default, the Holders
of the Common Securities shall have no right to act with respect to
any such Event of Default under this Trust Agreement until all such
Events of Default with respect to the Preferred Securities have
been cured, waived or otherwise eliminated. Until all such Events
of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the
Preferred Securities and not on behalf of the Holders of the Common
Securities, and only the Holders of all the Preferred Securities
will have the right to direct the Property Trustee to act on their
behalf.
SECTION
4.4.
Payment Procedures.
Payments
of Distributions (including any Additional Interest Amounts),
the Redemption Price, Liquidation Amount or any other amounts
in respect of the Preferred Securities shall be made by wire
transfer at such place and to such account at a banking
institution in the United States as may be designated in
writing at least ten (10) Business Days prior to the date for
payment by the Person entitled thereto unless proper written
transfer instructions have not been received by the relevant
record date, in which case such payments shall be made by
check mailed to the address of such Person as such address
shall appear in the Securities Register. If any Preferred
Securities are held by a Depositary, such Distributions
thereon shall be made to the Depositary in immediately
available funds. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of all the Common
Securities.
SECTION
4.5.
Withholding Tax.
The
Trust and the Administrative Trustees shall comply with all
withholding and backup withholding tax requirements under
United States federal, state and local law. The Administrative
Trustees on behalf of the Trust shall request, and the Holders
shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding and
backup withholding tax with respect to each Holder and any
representations and forms as shall reasonably be requested by
the Administrative Trustees on behalf of the Trust to assist
it in determining the extent of, and in fulfilling, its
withholding and backup withholding tax obligations. The
Administrative Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from
withholding and backup withholding tax is properly established
by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any
jurisdiction with respect to Distributions or allocations to
any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder.
In the event of any claimed overwithholding, Holders shall be
limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from
actual Distributions made, the Administrative Trustees on
behalf of the Trust may reduce subsequent Distributions by the
amount of such required withholding.
SECTION
4.6.
Tax Returns and Other Reports.
(a)
The Administrative Trustees shall prepare (or cause to be prepared)
at the principal office of the Trust in the United States, as
defined for purposes of Treasury regulations section 301.7701-7, at
the Depositor’s expense, and file, all United States federal,
state and local tax and information returns and reports required to
be filed by or in respect of the Trust. The Administrative Trustees
shall prepare at the principal office of the Trust in the United
States, as defined for purposes of Treasury regulations section
301.7701-7, and furnish (or cause to be prepared and furnished), by
January 31 in each taxable year of the Trust to each Holder all
Internal Revenue Service forms and returns required to be provided
by the Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing.
SECTION
4.7.
Payment of Taxes, Duties, Etc. of the Trust.
Upon
receipt under the Notes of Additional Tax Sums and upon the
written direction of the Administrative Trustees, the Property
Trustee shall promptly pay, solely out of monies on deposit
pursuant to this Trust Agreement, any Additional Taxes imposed
on the Trust by the United States or any other taxing
authority.
SECTION
4.8.
Payments under Indenture or Pursuant to Direct
Actions.
Any
amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment
such Holder (or any Owner with respect thereto) has directly
received pursuant to
Section 5.8 of
the Indenture or
Section 6.10(b) of
this Trust Agreement.
SECTION
4.9.
Exchanges.
(a)
If at any time the Depositor or any of its Affiliates (in either
case, a “Depositor Affiliate”) is the Owner or Holder
of any Preferred Securities, such Depositor Affiliate shall have
the right to deliver to the Property Trustee all or such portion of
its Preferred Securities as it elects and, subject to compliance
with Sections 2.2 and 3.5 of the Indenture, receive, in exchange
therefor, a Like Amount of Notes. Such election (i) shall be
exercisable effective on any Distribution Date by such Depositor
Affiliate delivering to the Property Trustee a written notice of
such election specifying the Liquidation Amount of Preferred
Securities with respect to which such election is being made and
the Distribution Date on which such exchange shall occur, which
Distribution Date shall be not less than ten (10) Business Days
after the date of receipt by the Property Trustee of such election
notice and (ii) shall be conditioned upon such Depositor Affiliate
having delivered or caused to be delivered to the Property Trustee
or its designee the Preferred Securities that are the subject of
such election by 10:00 A.M. New York time, on the Distribution Date
on which such exchange is to occur. After the exchange, such
Preferred Securities will be canceled and will no longer be deemed
to be Outstanding and all rights of the Depositor Affiliate with
respect to such Preferred Securities will cease.
(b)
In the case of an exchange described in
Section 4.9(a) ,
the Property Trustee on behalf of the Trust will, on the date of
such exchange, exchange Notes having a principal amount equal to a
proportional amount of the aggregate Liquidation Amount of the
Outstanding Common Securities, based on the ratio of the aggregate
Liquidation Amount of the Preferred Securities exchanged pursuant
to
Section 4.9(a) divided
by the aggregate Liquidation Amount of the Preferred Securities
Outstanding immediately prior to such exchange, for such
proportional amount of Common Securities held by the Depositor
(which contemporaneously shall be canceled and no longer be deemed
to be Outstanding); provided, that the Depositor delivers or causes
to be delivered to the Property Trustee or its designee the
required amount of Common Securities to be exchanged by 10:00 A.M.
New York time, on the Distribution Date on which such exchange is
to occur.
SECTION
4.10.
Calculation Agent.
(a)
The Property Trustee shall initially, and, subject to the
immediately following sentence, for so long as it holds any of the
Notes, be the Calculation Agent for purposes of determining LIBOR
for each Distribution Date. The Calculation Agent may be removed by
the Administrative Trustees at any time. If the Calculation Agent
is unable or unwilling to act as such or is removed by the
Administrative Trustees, the Administrative Trustees will promptly
appoint as a replacement Calculation Agent the London office of a
leading bank which is engaged in transactions in three-month U.S.
dollar deposits in Europe and which does not control or is not
controlled by or under common control with the Administrative
Trustee or its Affiliates. The Calculation Agent may not resign its
duties without a successor having been duly appointed.
(b)
The Calculation Agent shall be required to agree that, as soon as
possible after 11:00 a.m. (London time) on each LIBOR Determination
Date, but in no event later than 11:00 a.m. (London time) on the
Business Day immediately following each LIBOR Determination Date,
the Calculation Agent will calculate the interest rate and dollar
amount (rounded to the nearest cent, with half a cent being rounded
upwards) for the related Distribution Date, and will communicate
such rate and amount to the Depositor, the Property Trustee, each
Paying Agent and the Depositary. The Calculation Agent will also
specify to the Administrative Trustees the quotations upon which
the foregoing rates and amounts are based and, in any event, the
Calculation Agent shall notify the Administrative Trustees before
5:00 p.m. (London time) on each LIBOR Determination Date that
either: (i) it has determined or is in the process of determining
the foregoing rates and amounts or (ii) it has not determined and
is not in the process of determining the foregoing rates and
amounts, together with its reasons therefor. The Calculation
Agent’s determination of the foregoing rates and amounts for
any Distribution Date will (in the absence of manifest error) be
final and binding upon all parties. For the sole purpose of
calculating the interest rate for the Trust Securities,
“Business Day” shall be defined as any day on which
dealings in deposits in Dollars are transacted in the London
interbank market.
SECTION
4.11.
Certain Accounting Matters.
(a)
At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept at the principal office of
the Trust in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, full books of account, records and
supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained
on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied.
(b)
The Administrative Trustees shall either (i) if the Depositor is
then subject to such reporting requirements, cause each Form 10-K
and Form 10-Q prepared by the Depositor and filed with the
Commission in accordance with the Exchange Act to be delivered to
each Holder, with a copy to the Property Trustee, within thirty
(30) days after the filing thereof or (ii) cause to be prepared at
the principal office of the Trust in the United States, as defined
for purposes of Treasury Regulations section 301.7701-7, and
delivered to each of the Holders, with a copy to the Property
Trustee, within ninety (90) days after the end of each Fiscal Year,
annual financial statements of the Trust, including a balance sheet
of the Trust as of the end of such Fiscal Year, and the related
statements of income or loss.
(c)
The Trust shall maintain one or more bank accounts in the United
States, as defined for purposes of Treasury Regulations section
301.7701-7, in the name and for the sole benefit of the
Trust;
provided ,
however ,
that all payments of funds in respect of the Notes held by the
Property Trustee shall be made directly to the Payment Account and
no other funds of the Trust shall be deposited in the Payment
Account. The sole signatories for such accounts (including the
Payment Account) shall be designated by the Property
Trustee.
ARTICLE
V.
SECURITIES
SECTION
5.1.
Initial Ownership.
Upon
the creation of the Trust and the contribution by the
Depositor referred to in
Section 2.3 and
until the issuance of the Trust Securities, and at any time during
which no Trust Securities are Outstanding, the Depositor shall be
the sole beneficial owner of the Trust.
SECTION
5.2.
Authorized Trust Securities.
The
Trust shall be authorized to issue one series of Preferred
Securities having an aggregate Liquidation Amount of
twenty-five million dollars ($25,000,000) and one series of
Common Securities having an aggregate Liquidation Amount of
one hundred thousand dollars ($100,000).
SECTION
5.3.
Issuance of the Common Securities; Subscription and Purchase of
Notes.
On
the Closing Date, an Administrative Trustee, on behalf of the
Trust, shall execute and deliver to the Depositor Common
Securities Certificates, registered in the name of the
Depositor, evidencing an aggregate of 100 Common Securities
having an aggregate Liquidation Amount of one hundred thousand
dollars ($100,000), against receipt by the Trust of the
aggregate purchase price of such Common Securities of one
hundred thousand dollars ($100,000). Contemporaneously
therewith and with the sale by the Trust to the Holders of an
aggregate of twenty-five thousand (25,000) Preferred
Securities having an aggregate Liquidation Amount of
twenty-five million dollars ($25,000,000), an Administrative
Trustee, on behalf of the Trust, shall subscribe for and
purchase from the Depositor Notes, to be registered in the
name of the Property Trustee on behalf of the Trust and having
an aggregate principal amount equal to twenty-five million one
hundred thousand dollars ($25,100,000), and, in satisfaction
of the purchase price for such Notes, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of
twenty-five million one hundred thousand dollars ($25,100,000)
(being the aggregate amount paid by the Holders for the
Preferred Securities and the amount paid by the Depositor for
the Common Securities).
SECTION
5.4.
The Securities Certificates.
(a)
The Preferred Securities Certificates shall be issued in minimum
denominations of one hundred thousand dollars ($100,000)
Liquidation Amount and integral multiples of one thousand dollars
($1,000) in excess thereof, and the Common Securities Certificates
shall be issued in minimum denominations of ten thousand dollars
($10,000) Liquidation Amount and integral multiples of one thousand
dollars ($1,000) in excess thereof. The Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee. Securities
Certificates bea
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