EXECUTION COPY
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AMENDED AND RESTATED TRUST AGREEMENT
among
NORTHSTAR REALTY FINANCE LIMITED PARTNERSHIP,
as Depositor
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Property Trustee
CHASE BANK USA, NATIONAL ASSOCIATION,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
as Administrative Trustees
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Dated as of May 25, 2005
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NORTHSTAR REALTY FINANCE TRUST II
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CONTENTS
CLAUSE
PAGE
----
ARTICLE I.
Defined Terms............................................
1
Section 1.1.
Definitions..........................................
1
ARTICLE II.
The Trust................................................
11
Section 2.1.
Name.................................................
11
Section 2.2.
Office of the Delaware Trustee; Principal Place of
Business..........................................
11
Section 2.3.
Initial Contribution of Trust Property; Fees, Costs
and Expenses......................................
11
Section 2.4.
Purposes of Trust....................................
12
Section 2.5.
Authorization to Enter into Certain Transactions.....
12
Section 2.6.
Assets of Trust......................................
15
Section 2.7.
Title to Trust Property..............................
15
ARTICLE III.
Payment Account; Paying Agents...........................
15
Section 3.1.
Payment Account......................................
15
Section 3.2.
Appointment of Paying Agents.........................
15
ARTICLE IV.
Distributions; Redemption................................
16
Section 4.1.
Distributions........................................
16
Section 4.2.
Redemption...........................................
18
Section 4.3.
Subordination of Common Securities...................
20
Section 4.4.
Payment Procedures...................................
21
Section 4.5.
Withholding Tax......................................
21
Section 4.6.
Tax Returns and Other Reports........................
22
Section 4.7.
Payment of Taxes, Duties, Etc. of the Trust..........
22
Section 4.8.
Payments under Indenture or Pursuant to Direct
Actions...........................................
22
Section 4.9.
Exchanges............................................
22
Section 4.10.
Calculation Agent....................................
23
Section 4.11.
Certain Accounting Matters...........................
24
ARTICLE V.
Securities...............................................
25
Section 5.1.
Initial Ownership....................................
25
Section 5.2.
Authorized Trust Securities..........................
25
Section 5.3.
Issuance of the Common Securities; Subscription and
Purchase of Notes.................................
25
Section 5.4.
The Securities Certificates..........................
25
Section 5.5.
Rights of Holders....................................
26
Section 5.6.
Book-Entry Preferred Securities......................
26
Section 5.7.
Registration of Transfer and Exchange of Preferred
Securities Certificates...........................
28
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CONTENTS
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PAGE
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Section 5.8.
Mutilated, Destroyed, Lost or Stolen Securities
Certificates......................................
29
Section 5.9.
Persons Deemed Holders...............................
30
Section 5.10.
Cancellation.........................................
30
Section 5.11.
Ownership of Common Securities by Depositor..........
31
Section 5.12.
Restricted Legends...................................
31
Section 5.13.
Form of Certificate of Authentication................
33
ARTICLE VI.
Meetings; Voting; Acts of Holders........................
34
Section 6.1.
Notice of Meetings...................................
34
Section 6.2.
Meetings of Holders of the Preferred Securities......
34
Section 6.3.
Voting Rights........................................
35
Section 6.4.
Proxies, Etc.........................................
35
Section 6.5.
Holder Action by Written Consent.....................
35
Section 6.6.
Record Date for Voting and Other Purposes............
35
Section 6.7.
Acts of Holders......................................
35
Section 6.8.
Inspection of Records................................
36
Section 6.9.
Limitations on Voting Rights.........................
37
Section 6.10.
Acceleration of Maturity; Rescission of Annulment;
Waivers of Past Defaults..........................
37
ARTICLE VII.
Representations and Warranties...........................
40
Section 7.1.
Representations and Warranties of the Property
Trustee and the Delaware Trustee..................
40
Section 7.2.
Representations and Warranties of Depositor.............
41
ARTICLE VIII.
The Trustees.............................................
42
Section 8.1.
Number of Trustees...................................
42
Section 8.2.
Property Trustee Required............................
42
Section 8.3.
Delaware Trustee Required............................
43
Section 8.4.
Appointment of Administrative Trustees...............
43
Section 8.5.
Duties and Responsibilities of the Trustees..........
43
Section 8.6.
Notices of Defaults and Extensions...................
45
Section 8.7.
Certain Rights of Property Trustee...................
45
Section 8.8.
Delegation of Power..................................
48
Section 8.9.
May Hold Securities..................................
48
Section 8.10.
Compensation; Reimbursement; Indemnity...............
48
Section 8.11.
Resignation and Removal; Appointment of Successor....
49
Section 8.12.
Acceptance of Appointment by Successor...............
50
Section 8.13.
Merger, Conversion, Consolidation or Succession to
Business..........................................
51
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Section 8.14.
Not Responsible for Recitals or Issuance of
Securities........................................
51
Section 8.15.
Property Trustee May File Proofs of Claim............
51
Section 8.16.
Reports to the Property Trustee......................
52
ARTICLE IX.
Termination, Liquidation and Merger......................
53
Section 9.1.
Dissolution Upon Expiration Date.....................
53
Section 9.2.
Early Termination....................................
53
Section 9.3.
Termination..........................................
53
Section 9.4.
Liquidation..........................................
53
Section 9.5.
Mergers, Consolidations, Amalgamations or
Replacements of Trust.............................
55
ARTICLE X.
Miscellaneous Provisions.................................
56
Section 10.1.
Limitation of Rights of Holders......................
56
Section 10.2.
Agreed Tax Treatment of Trust and Trust Securities...
56
Section 10.3.
Amendment............................................
57
Section 10.4.
Separability.........................................
58
Section 10.5.
Governing Law........................................
58
Section 10.6.
Successors...........................................
58
Section 10.7.
Headings.............................................
58
Section 10.8.
Reports, Notices and Demands.........................
59
Section 10.9.
Agreement Not to Petition............................
59
Section 10.10.
Counterparts.........................................
60
Exhibit A
Certificate of Trust of NorthStar Realty Finance Trust II
Exhibit B
Form of Common Securities Certificate
Exhibit C
Form of Preferred Securities Certificate
Exhibit D
Junior Subordinated Indenture
Exhibit E
Form of Transferor Certificate to be Executed by Transferees
Exhibit F
Form of Officer's Financial Certificate of the Depositor
Schedule A
Calculation of LIBOR
iii
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of May 25,
2005, among
(i) NorthStar Realty Finance Limited Partnership, a Delaware
limited partnership
(including any successors or permitted assigns, the "Depositor"),
(ii) JPMorgan
Chase Bank, National Association, a national banking association,
as property
trustee (in such capacity, the "Property Trustee"), (iii) Chase
Bank USA,
National Association, a national banking association, as Delaware
trustee (in
such capacity, the "Delaware Trustee"), (iv) David T. Hamamoto, an
individual,
Mark E. Chertok, an individual and Richard J. McCready, an
individual, each of
whose address is c/o NorthStar Realty Finance Limited Partnership,
527 Madison
Avenue, New York, New York 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 (v) the several Holders, as
hereinafter
defined.
WITNESSETH
WHEREAS, the Depositor 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 May 13, 2005 (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.
2
"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 Federal or State bankruptcy, insolvency,
reorganization or other similar 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 Laws" 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.
"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
3
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 an undivided beneficial interest in the
assets of
the Trust, having a Liquidation Amount of $1,000 and having the
rights 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 600
Travis, 50th
Floor, Houston, Texas 77002, Attention: Institutional Trust
Services-- NorthStar
Realty Finance Trust II.
"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 Section 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, a New York corporation,
or any
successor thereto.
4
"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.
"Extension Period" has the meaning specified in Section 4.1(a)(ii).
"Extension Right" has the meaning specified in Section 4.1(a)(ii).
"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.
"Fixed Rate Period" shall mean the period through the interest
payment date
in June 2015.
"Global Preferred Security" means a Preferred Securities
Certificate
evidencing ownership of Book-Entry Preferred Securities.
5
"Holder" means a Person in whose name a Trust Security or Trust
Securities
are registered in the Securities Register; any such Person shall be
deemed to 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 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" means the Optional Note Redemption
Price or
the Special Note Redemption Price, as applicable.
"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).
6
"Majority in Liquidation Amount" means Common or Preferred
Securities, as
the case may be, representing more than fifty percent (50%) of the
aggregate
Liquidation Amount of all (or a specified group of) then
Outstanding Common or
Preferred Securities, as the case may be.
"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 Floating Rate Junior Subordinated
Notes
issued pursuant to the Indenture.
"Officers' Certificate" means a certificate signed by the Chief
Executive
Officer, the President or an Executive Vice President, and by the
Chief
Financial Officer, Treasurer or an Assistant Treasurer, of the
Depositor, and
delivered to the Trustees. Any Officers' 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 which
is not an
Officers' Certificate) shall include:
(a) a statement by each officer signing the Officers' 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 Officers'
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 any Affiliate of the
Depositor.
7
"Optional Redemption Price" means, with respect to any Trust
Security, an
amount equal to one hundred percent (100%) of the Liquidation
Amount of such
Trust Security on the Redemption Date, plus accumulated and unpaid
Distributions
to the Redemption Date, plus the related amount of the premium, if
any, and/or
accrued interest, including Additional Interest, if any, thereon
paid by the
Depositor upon the concurrent redemption or payment at maturity of
a Like Amount
of Notes.
"Optional Note Redemption Price" means, with respect to any Note to
be
redeemed on any Redemption Date under the Indenture, an amount
equal to one
hundred percent (100%) of the outstanding principal amount of such
Note,
together with accrued interest, including any Additional Interest
(to the extent
legally enforceable), thereon through but not including the date
fixed as such
Redemption Date.
"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, any Trustee or any Affiliate of
the Depositor
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, 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
8
respect to such Preferred Securities and that the pledgee is not
the Depositor,
any Trustee or any Affiliate of the Depositor 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 an undivided beneficial interest in the
assets
of the Trust, having a Liquidation Amount of $1,000 and having the
rights
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 executed and
delivered by
the Trust, the Depositor and Merrill Lynch International, as
purchaser,
contemporaneously with the execution and delivery of this Trust
Agreement, as
amended from time to time.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A under
the Securities Act of 1933, as amended.
"QP" means a "qualified purchaser" as defined in Section 2(a)(51)
of the
Investment Company Act of 1940, as amended.
"QIB/QP" means a QIB that is also a QP.
"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
9
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 the Special Redemption Price or Optional
Redemption Price, as applicable. If the Depositor has redeemed the
Notes at the
Special Note Redemption Price, the Trust shall redeem the Trust
Securities at
the Special Redemption Price. If the Depositor has redeemed the
Notes at the
Optional Note Redemption Price, the Trust shall redeem the Trust
Securities at
the Optional Redemption Price.
"Reference Banks" has the meaning specified in Schedule A.
"Responsible Officer" means, with respect to the Property Trustee,
the
officer in the Institutional Trust Services department of the
Property Trustee
having direct responsibility for the administration of this Trust
Agreement.
"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 Redemption Price" means, with respect to any Trust
Security, an
amount equal to one hundred seven and one half percent (107.5%) of
the
Liquidation Amount of such Trust Security on the Redemption Date,
plus
accumulated and unpaid Distributions to the Redemption Date, plus
the related
amount of the premium, if any, and/or accrued interest, including
Additional
Interest, if any, thereon paid by the Depositor upon the concurrent
redemption
or payment at maturity of a Like Amount of Notes.
"Special Note Redemption Price" means, with respect to any Note to
be
redeemed on any Redemption Date under the Indenture, an amount
equal to one
hundred seven and one half percent (107.5%) of the outstanding
principal amount
of such Note, together with accrued interest, including Additional
Interest,
thereon through but not including the date fixed as such Redemption
Date.
"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 II," which was created on May 13, 2005 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.
10
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the
same may be modified, amended or supplemented from time to time in
accordance
with the applicable provisions hereof, including all Schedules and
Exhibits.
"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 II", 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
Chase Bank
USA, National Association, 500 Stanton Christiana Road, Building 4
(3rd Floor),
Newark, DE 19713, Attention: Institutional Trust Services, or such
other address
in the State of Delaware as the Delaware Trustee may designate by
written notice
to the Holders, the Depositor, the Property Trustee and the
Administrative
Trustees. The principal executive office of the Trust is 527
Madison Avenue, New
York, NY 10022, Attention: Richard J. McCready, 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.
11
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 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 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 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 and authority 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 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 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;
12
(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 Paying Agent and Securities Registrar in
accordance with this Trust Agreement;
(F) execution 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 and application for a taxpayer
identification number for the Trust;
(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 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,
duty and authority 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 collection 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;
13
(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, provided that
the
Administrative Trustees shall have the power, duty and authority to
act on behalf of the Trust with respect to the preparation,
execution
and filing of the certificate of cancellation of the Trust with the
Secretary of State of the State of Delaware; and
(I) 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
authorized 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 respect thereof, 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.
14
(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 Paying Agent shall initially be the Property Trustee. 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
15
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
May 25,
2005, and, except as provided in clause (ii) below, shall be
payable
quarterly in arrears on March 30, June 30, September 30 and
December 30 of
each year, commencing on September 30, 2005. 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) in the event (and to the extent) that the Depositor exercises
its
right under the Indenture to defer the payment of interest on the
Notes,
Distributions on the Trust
16
Securities shall be deferred. Under the Indenture, so long as no
Note Event
of Default has occurred and is continuing, after October 12, 2006,
the
Depositor shall have the right, at any time and from time to time
during
the term of the Notes, to defer the payment of interest on the
Notes for a
period of up to six (6) consecutive quarterly interest payment
periods
(such right to defer, the "Extension Right" and each such extended
interest
payment period, an "Extension Period"), during which Extension
Period(s),
no interest shall be due and payable (except any Additional Tax
Sums that
may be due and payable); provided, that, the Depositor shall not be
entitled to exercise its Extension Right so that it would be able
to defer
the payment of interest on the Notes for more than six (6)
quarterly
interest payment periods; provided, further, that, after the
expiration of
any Extension Period, the Depositor may not exercise its Extension
Right to
begin any subsequent Extension Period until it pays all interest
then
accrued and unpaid on the Notes, together with such Additional
Interest
prior to beginning such subsequent Extension Period. No interest on
the
Notes shall be due and payable during an Extension Period, except
at the
end thereof, but each installment of interest that would otherwise
have
been due and payable during such Extension Period shall bear
Additional
Interest (to the extent payment of such interest would be legally
enforceable) at a fixed rate equal to 7.74% per annum through the
interest
payment date in June 2015 and thereafter at a variable rate equal
to LIBOR
plus 3.25% per annum compounded quarterly, from the dates on which
amounts
would have otherwise been due and payable until paid or until funds
for the
payment thereof have been made available for payment. If
Distributions are
deferred, the deferred Distributions (including Additional Interest
Amounts) shall be paid on the date that the related Extension
Period
terminates, to Holders of the Trust Securities as they appear on
the books
and records of the Trust on the record date immediately preceding
such
termination date.
(iii) Distributions shall accumulate in respect of the Trust
Securities at a fixed rate equal to 7.74% per annum through the
interest
payment date in June 2015 and thereafter at a variable rate equal
to LIBOR
plus 3.25% per annum 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.
During
the Fixed Rate Period, the amount of Distributions payable for any
period
less than a full Distribution period shall be computed on the basis
of a
360-day year of twelve 30-day months and the amount payable for any
partial
period shall be computed on the basis of the number of days elapsed
in a
360-day year of twelve 30-day months. Upon expiration of the Fixed
Rate
Period, the amount of interest payable for any Interest Payment
Period will
be computed on the basis of a 360-day year and the actual number of
days
elapsed in the relevant interest period. The amount of
Distributions
payable for any period shall include any Additional Interest
Amounts in
respect of such period; and
(iv) 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
17
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, except that Distributions and any
Additional
Interest Amounts payable on the stated maturity (or any date of
principal
repayment upon early maturity) of the principal of a Trust Security
or on a
Redemption Date shall be paid to the Person to whom principal is
paid.
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.
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 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
18
(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
June 30, 2010, in whole or in part, from time to time at the
Optional Note
Redemption Price. The Notes may also be redeemed by the Depositor,
at its option
pursuant to the terms of the Indenture, in whole but not in part,
upon the
occurrence and during the continuation of an Investment Company
Event or a Tax
Event, at the Special Note Redemption Price.
(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,
Distributions
on such Trust Securities (or portion
19
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, 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
20
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.
(a) 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
21
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.
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, Cohen Bros. & Company 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 shall be
exercisable effective
on any Distribution Date by such Depositor Affiliate delivering to
the Property
Trustee (i) at least ten (10) Business Days prior to the
Distribution Date on
which such exchange is to occur, the registration instructions and
the
documentation, if any, required pursuant to Sections 2.2 and 3.5 of
the
Indenture to enable the Indenture Trustee to issue the requested
Like Amount of
Notes, (ii) 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 (iii) shall be
conditioned upon
such Depositor Affiliate having delivered or caused to be delivered
to the
Property Trustee or its
22
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 six-month Eurodollar deposits in the
international
Eurodollar market 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 (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 Administrative Trustees, the Note
Trustee, each
Paying Agent and the Depositary. The Calculation Agent will also
specify to the
Administrative Trustee 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.
23
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) If the Depositor intends to file its annual and quarterly
information
with the Commission in electronic form pursuant to Regulation S-T
of the
Commission using the Commission's Electronic Data Gathering,
Analysis and
Retrieval ("EDGAR") system, the Administrative Trustees shall
notify the
Property Trustee in the manner prescribed herein of each such
annual and
quarterly filing. The Property Trustee is hereby authorized and
directed to
access the EDGAR system for purposes of retrieving the financial
information so
filed. Compliance with the foregoing shall constitute delivery by
the
Administrative Trustees of its financial statements to the Property
Trustee in
compliance with the provisions of Section 314(a) of the Trust
Indenture Act, if
applicable. The Property Trustee shall have no duty to search for
or obtain any
electronic or other filings that the Depositor makes with the
Commission,
regardless of whether such filings are periodic, supplemental or
otherwise.
Delivery of reports, information and documents to the Property
Trustee pursuant
to this Section 4.11(c) shall be solely for purposes of compliance
with this
Section 4.11 and, if applicable, with Section 314(a) of the Trust
Indenture Act.
The Property Trustee's receipt of such reports, information and
documents shall
not constitute notice to it of the content thereof or any matter
determinable
from the content thereof, including the Depositor's compliance with
any of its
covenants hereunder, as to which the Property Trustee is entitled
to rely upon
Officers' Certificates.
(d) 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.
24
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 $25,000,000 and one
series of Common
Securities having an aggregate Liquidation Amount of $780,000.
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
Seven
Hundred Eighty Thousand (780) Common Securities having an aggregate
Liquidation
Amount of Seven Hundred Eighty Thousand Dollars ($780,000), against
receipt by
the Trust of the aggregate purchase price of such Common Securities
of Seven
Hundred Eighty Thousand Dollars ($780,000). 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 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 Seven Hundred Eighty Thousand
Dollars
($25,780,000), 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 Seven Hundred Eighty Thousand Dollars
($25,780,000)
(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 $100,000 Liquidation Amount and integral multiples
of $1,000 in
excess thereof, and the Common Securities Certificates shall be
issued in
minimum denominations of $10,000 Liquidation Amount and integral
multiples of
$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 bearing the
signatures of
individuals who were, at the time when such signatures shall have
been affixed,
authorized to sign such Securities Certificates on behalf of the
Trust shall be
validly issued and entitled to the benefits of this Trust
Agreement,
notwithstanding that such individuals or any of them shall have
ceased to be so
25
authorized prior to the delivery of such Securities Certificates or
did not have
such authority at the date of delivery of such Securities
Certificates.
(b) On the Closing Date, upon the written order of an authorized
officer of
the Depositor, the Administrative Trustees shall cause Securities
Certificates
to be executed on behalf of the Trust and delivered, without
further corporate
action by the Depositor, in authorized denominations.
(c) The Preferred Securities issued to QIBs/QPs shall be, except as
provided in Section 5.6, Book-Entry Preferred Securities issued in
the form of
one or more Global Preferred Securities registered in the name of
the
Depositary, or its nominee and deposited with the Depositary or a
custodian for
the Depositary for credit by the Depositary to the respective
accounts of the
Depositary Participants thereof (or such other accounts as they may
direct). The
Preferred Securities issued to a Person other than a QIB/QP shall
be issued in
the form of Definitive Preferred Securities Certificates.
(d) A Preferred Security shall not be valid until authenticated by
the
manual signature of an authorized signatory of the Property
Trustee. Such
signature shall be conclusive evidence that the Preferred Security
has been
authenticated under this Trust Agreement. Upon written order of the
Trust signed
by one Administrative Trustee, the Property Trustee shall
authenticate the
Preferred Securities for original issue. The Property Trustee may
appoint an
authenticating agent that is a U.S. Person acceptable to the Trust
to
authenticate the Preferred Securities. A Common Security need not
be so
authenticated and shall be valid upon execution by one or more
Administrative
Trustees. The form of this certificate of authentication can be
found in Section
5.13.
SECTION 5.5. Rights of Holders.
The Trust Securities shall have no preemptive or similar rights and
when
issued and delivered to Holders against payment of the purchase
price therefor
will be fully paid and non-assessable by the Trust. Except as
provided in
Section 5.11(b), the Holders of the Trust Securities, in their
capacities as
such, shall be entitled to the same limitation of personal
liability extended to
stockholders of private corporations for profit organized under the
General
Corporation Law of the State of Delaware.
SECTION 5.6. Book-Entry Preferred Securities.
(a) A Global Preferred Security may be exchanged, in whole or in
part, for
Definitive Preferred Securities Certificates registered in the
names of the
Owners only if such exchange complies with Section 5.7 and (i) the
Depositary
advises the Administrative Trustees and the Property Trustee in
writing that the
Depositary is no longer willing or able properly to discharge its
responsibilities with respect to the Global Preferred Security, and
no qualified
successor is appointed by the Administrative Trustees within ninety
(90) days of
receipt of such notice, (ii) the Depositary ceases to be a clearing
agency
registered under the Exchange Act and the Administrative Trustees
fail to
appoint a qualified successor within ninety (90) days of obtaining
knowledge of
such event, (iii) the Administrative Trustees at their option
advise the
Property Trustee in writing that the Trust elects to terminate the
book-entry
system through the Depositary
26
or (iv) a Note Event of Default has occurred and is continuing.
Upon the
occurrence of any event specified in clause (i), (ii), (iii) or
(iv) above, the
Administrative Trustees shall notify the Depositary and instruct
the Depositary
to notify all Owners of Book-Entry Preferred Securities, the
Delaware Trustee
and the Property Trustee of the occurrence of such event and of the
availability
of the Definitive Preferred Securities Certificates to Owners of
the Preferred
Securities requesting the same. Upon the issuance of Definitive
Preferred
Securities Certificates, the Trustees shall recognize the Holders
of the
Definitive Preferred Securities Certificates as Holders.
Notwithstanding the
foregoing, if an Owner of a beneficial interest in a Global
Preferred Security
wishes at any time to transfer an interest in such Global Preferred
Security to
a Person other than a QIB/QP, such transfer shall be effected,
subject to the
Applicable Depositary Procedures, in accordance with the provisions
of this
Section 5.6 and Section 5.7, and the transferee shall receive a
Definitive
Preferred Securities Certificate in connection with such transfer.
A holder of a
Definitive Preferred Securities Certificate that is a QIB/QP may,
upon request
and in accordance with the provisions of this Section 5.6 and
Section 5.7,
exchange such Definitive Preferred Securities Certificate for a
beneficial
interest in a Global Preferred Security.
(b) If any Global Preferred Security is to be exchanged for
Definitive
Preferred Securities Certificates or canceled in part, or if any
Definitive
Preferred Securities Certificate is to be exchanged in whole or in
part for any
Global Preferred Security, then either (i) such Global Preferred
Security shall
be so surrendered for exchange or cancellation as provided in this
Article V or
(ii) the aggregate Liquidation Amount represented by such Global
Preferred
Security shall be reduced, subject to Section 5.4, or increased by
an amount
equal to the Liquidation Amount represented by that portion of the
Global
Preferred Security to be so exchanged or canceled, or equal to the
Liquidation
Amount represented by such Definitive Preferred Securities
Certificates to be so
exchanged for any Global Preferred Security, as the case may be, by
means of an
appropriate adjustment made on the records of the Securities
Registrar,
whereupon the Property Trustee, in accordance with the Applicable
Depositary
Procedures, shall instruct the Depositary or its authorized
representative to
make a corresponding adjustment to its records. Upon any such
surrender to the
Administrative Trustees or the Securities Registrar of any Global
Preferred
Security or Securities by the Depositary, accompanied by
registration
instructions, the Administrative Trustees, or any one of them,
shall execute the
Definitive Preferred Securities Certificates in accordance with the
instructions
of the Depositary. None of the Securities Registrar or the Trustees
shall be
liable for any delay in delivery of such instructions and may
conclusively rely
on, and shall be fully protected in relying on, such instructions.
(c) Every Definitive Preferred Securities Certificate executed and
delivered upon registration or transfer of, or in exchange for or
in lieu of, a
Global Preferred Security or any portion thereof shall be executed
and delivered
in the form of, and shall be, a Global Preferred Security, unless
such
Definitive Preferred Securities Certificate is registered in the
name of a
Person other than the Depositary for such Global Preferred Security
or a nominee
thereof.
(d) The Depositary or its nominee, as registered owner of a Global
Preferred Security, shall be the Holder of such Global Preferred
Security for
all purposes under this Trust Agreement and the Global Preferred
Security, and
Owners with respect to a Global Preferred Security shall hold such
interests
pursuant to the Applicable Depositary Procedures. The Securities
Registrar and
the Trustees shall be entitled to deal with the Depositary for all
purposes of
this Trust Agreement relating to the Global Preferred Securities
(including the
payment of the
27
Liquidation Amount of and Distributions on the Book-Entry Preferred
Securities
represented thereby and the giving of instructions or directions by
Owners of
Book-Entry Preferred Securities represented thereby and the giving
of notices)
as the sole Holder of the Book-Entry Preferred Securities
represented thereby
and shall have no obligations to the Owners thereof. None of the
Trustees nor
the Securities Registrar shall have any liability in respect of any
transfers
effected by the Depositary.
(e) The rights of the Owners of the Book-Entry Preferred Securities
shall
be exercised only through the Depositary and shall be limited to
those
established by law, the Applicable Depositary Procedures and
agreements between
such Owners and the Depositary and/or the Depositary Participants;
