Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows: (i) each Administrator, acting jointly or singly, shall: (A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities; (B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act; (C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement; (E) execute and deliver an application for a taxpayer identification number for the Issuer Trust; (F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto; (G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and (H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement. (ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters: (A) the establishment of the Payment Account; (B) the receipt of the Junior Subordinated Debentures; (C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account; (D) the distribution of amounts owed 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 Junior Subordinated Debentures; (F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and (I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement. (iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing. (b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders. (c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities; (ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities; (iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and (iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 4 contracts
Samples: Trust Agreement (Auburn National Bancorporation Inc), Trust Agreement (Crescent Banking Co), Trust Agreement (CCF Holding Co)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each Administrator, acting jointly or singly, shallEach Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Issuer Trust to enter into, and to execute and deliver on behalf of the Issuer Trust, the Expense Agreement and such other agreements as may be necessary or desirable in compliance connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Capital Securities Act, under the Securities Act and under applicable state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Subordinated Debentures to the Holders in accordance with this Trust Agreement;
(EF) execute the consent to the appointment of a Paying Agent and deliver an Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(G) the execution of the Trust Securities in accordance with this Trust Agreement;
(H) the execution and delivery of closing certificates pursuant to the Underwriting Agreement and the application for a taxpayer identification number for the Issuer Trust;
(FI) assist to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Issuer Trust and the preparation and filing of the certificate of cancellation with the Commission, at such time as determined by Secretary of State of the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments theretoState of Delaware;
(GJ) unless otherwise required by the Trust Indenture Actapplicable law, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HK) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
(ii) The Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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); providedand
(J) any of the duties, howeverliabilities, that nothing powers or the authority of the Administrative Trustees set forth herein; and in this Section 2.8(a)(ii) shall require the event of a conflict between the action of the Administrative Trustees and the action of the Property Trustee, the action of the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingprevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators Administrative Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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) take any action that would reasonably be expected to cause the Issuer Trust to become be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall shall, at the sole cost and expense of the Issuer Trust, defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Trust of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) if the Depositor shall desire, the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing, upon notice of issuance, of any Capital Securities;
(iv) the preparation for filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Capital Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the preparation and execution of a Letter of Representations to The Depository Trust Company on behalf of the Issuer Trust;
(vi) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(ivvii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company 1940 Act, and will not or to be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property each Administrative Trustee and Holders of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Administrative Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 4 contracts
Samples: Trust Agreement (Goldman Sachs Group Inc/), Trust Agreement (Goldman Sachs Capital V), Trust Agreement (Goldman Sachs Group Inc/)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;; and
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments thereto;thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act.
(GF) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 4 contracts
Samples: Trust Agreement (GCB Capital Trust), Trust Agreement (Broad National Bancorporation), Trust Agreement (Fb Capital Trust)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (bparagraph(b) of this Section and in accordance with the following provisions (i), (iiprovisions(i) and (iiiii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act as followsTrustees 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 without limitation, the following:
(i) As among the Trustees, each Administrator, acting jointly or singly, shallAdministrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Underwriting Agreement, the Registration Agreement, the Letter of Representations and such other agreements as may be necessary or desirable in compliance connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities Act, applicable under the Securities Act and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing listing, if any, of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Junior Subordinated Debt Securities to the Securityholders in accordance with this Trust Agreement;
(EF) execute the appointment of a Paying Agent, Transfer Agent and deliver an application for a taxpayer identification number for the Issuer TrustSecurities Registrar in accordance with this Trust Agreement;
(FG) assist registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the filing extent provided in this Trust Agreement, the winding up of the affairs and liquidation of the Trust and the preparation of the certificate of cancellation with the Commission, at such time as Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, any registration statement, if any, under the Securities Act relating to Property Trustee or the Trust Securities, including any amendments thereto;
(G) unless Administrative Trustees or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HJ) take the taking of any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholders).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated DebenturesDebt Securities;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures Debt Securities in the Payment Account;
(D) the distribution of amounts owed to the Holders Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated DebenturesDebt Securities;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures Debt Securities to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the Property Trustee), comply with the provisions of this Trust Agreement and take any action foregoing as 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing and
(J) except as otherwise provided in this Section 2.8(a)(ii) shall require 2.07(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction transactions except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, (iii) intentionally take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) invest any proceeds received by the Trust from holding the Junior Subordinated Debt Securities, but shall distribute all such proceeds to Holders pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities), (x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities, or (xi) other than as expressly provided hereinin this Trust Agreement or by the terms of the Trust Securities, (A) direct the time, method and place of exercising any trust or power conferred upon the Debenture Trustee with respect to the Junior Subordinated Debt Securities, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all Junior Subordinated Debt Securities shall be due and payable, or (D) consent to any amendment, modification, or termination of the Indenture or the Junior Subordinated Debt Securities where such consent shall be required unless the Trust shall have received an Opinion of Counsel of a law firm experienced in such matters to the effect that such amendment, modification or termination will not cause more than an insubstantial risk that the Trust will be deemed an Investment Company required to be registered under the 1940 Act, the Trust will not be classified as a grantor trust for United States federal income tax purposes or the Junior Subordinated Debt Securities will not be classified as indebtedness for such purposes. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Trust Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Trust Securities, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Trust Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securitiesstates;
(iii) the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Trust Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(iv) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Trust Securities; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not (i) be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not 1940 Act or (ii) fail to be taxable other than classified as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures Debt Securities will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their 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 holders of the Outstanding Capital Trust Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 4 contracts
Samples: Trust Agreement (Bancorpsouth Inc), Trust Agreement (Bancorpsouth Inc), Trust Agreement (Bancorpsouth Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation Junior Subordinated Debenture Subscription Agreements, the Debenture Purchase Common Securities Subscription Agreements, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (i) acquire any investments investments, reinvest the proceeds derived from 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) take any action that would reasonably be expected to cause the Issuer Trust to fail or cease to qualify as a grantor trust for United States Federal income tax purposes or to cause the Issuer Trust to become taxable other than as a grantor trust corporation or a partnership for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Issuer Trust other than the Trust Securities or (vvi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable as a corporation, a partnership or any other arrangement other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 3 contracts
Samples: Trust Agreement (Morgan Stanley), Trust Agreement (Morgan Stanley), Trust Agreement (Morgan Stanley)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 3 contracts
Samples: Trust Agreement (Gold Banc Corp Inc), Trust Agreement (Pfbi Capital Trust), Trust Agreement (Greater Community Bancorp)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each AdministratorEach Administrator is authorized, acting jointly or singlyon behalf of the Trust, shallto:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as unless otherwise determined by the Depositor, any registration statement, if any, under Property Trustee or Holders of at least a Majority in Liquidation Amount of the Capital Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the limitation a Junior Subordinated Debenture Purchase Agreement and the a Common Securities Purchase Agreement, both by and between the Issuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); and provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with preparation by the Commission Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 3 contracts
Samples: Trust Agreement (First Empire State Corp), Trust Agreement (First Empire Capital Trust Ii), Trust Agreement (First Empire Capital Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 3 contracts
Samples: Trust Agreement (CCF Holding Co), Trust Agreement (Florida Community Banks Inc), Trust Agreement (Peoples Bancorp of North Carolina Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Property Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Purchase Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, laws and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as unless otherwise determined by the Depositor, any registration statement, if any, under Depositor or Holders of at least a Majority in Liquidation Amount of the Capital Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture a Junior Subordinated Debentures Purchase Agreement and the a Common Securities Purchase Agreement; and, both by and between the Issuer Trust and the Depositor;
(G) have the power and authority to cause the Issuer Trust to enter into, and to execute, deliver and perform on behalf of the Issuer Trust, the Registration Rights Agreements, and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
(H) assist in the registration of the Exchange Offer and the Exchange Capital Securities under the Securities Act, and under the state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act, all in accordance with the Capital Securities Exchange and Registration Rights Agreement;
(I) send notices (other than notices of default) and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders in accordance with this Trust Agreement;
(J) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution distribution, through the Paying Agent, of amounts owed 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 Junior Subordinated DebenturesDebentures (subject to the terms of this Trust Agreement);
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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);
(J) the exchange of the Private Guarantee for the Exchange Guarantee in an exchange in connection with the Exchange Offer pursuant to the Registration Rights Agreement; and
(K) the exchange of the Private Debentures for the Exchange Debentures in an exchange in connection with the Exchange Offer pursuant to the Registration Rights Agreement; provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Agreement and the Property Trustee shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrators set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (United Community Capital Trust), Trust Agreement (City Holding Capital Trust)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII and in accordance with the following provisions (i), (iiA) and (iiiB), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators 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 without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the power, duty and authority to act as followson behalf of the Trust with respect to the following matters:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(Bii) assist without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, the Dealer Manager Agreement and such other agreements as may be necessary or desirable in compliance connection with the consummation hereof (such execution to be by the Administrative Trustees or any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account;
(v) the filing of an Issuer Tender Offer Statement on Schedule 13E-4 and any other tender offer statement required to be filed with the Securities Actand Exchange Commission and the conduct of the Exchange Offer as described therein and in the Dealer Manager Agreement;
(vi) the registration of the Preferred Securities under the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(Cvii) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Dviii) execute the Trust appointment of a Paying Agent and Securities on behalf of the Issuer Trust Registrar in accordance with this Trust Agreement;
(Eix) execute and deliver an application for a taxpayer identification number for registering transfers of the Issuer TrustTrust Securities in accordance with this Trust Agreement;
(Fx) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to extent provided in this Trust Agreement, including without limitation, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common Securities Purchase Agreementpreparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(Hxi) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect to the terms of this Trust Agreementany such action on any particular Securityholder).
(iiB) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(Ai) the establishment of the Payment Account;
(Bii) the receipt of the Junior Subordinated Debentures;
(Ciii) the receipt and collection deposit of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(Div) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(Fv) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders in accordance with the terms of this Trust Agreement;
(Gvi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(Hvii) to the extent as provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(Iviii) after an Event the taking of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action Trustee may from time to give effect time determine is necessary or advisable to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing in . Subject to this Section 2.8(a)(ii) shall require 2.07(a)(B), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under Administrative Trustee set forth in Section 2.07(a)(A) or the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingDepositor set forth in Section 2.07(c).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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) to prepare for filing by the preparation, execution and filing Trust with the Commission of and to execute a registration statement on the appropriate form under the Securities Act or the preparation of offering documents Form S-4 in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto;
(ii) to determine the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) to prepare for filing by the negotiation Trust an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale issuance of the Capital any Preferred Securities; and;
(iv) to prepare for filing by the taking Trust with the Commission and to execute a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), including any amendments thereto;
(v) to select the investment banker or bankers to act as dealer managers with respect to the exchange by the Depositor of Preferred Securities for Depositary Shares ("Exchange") and negotiate the terms of a Dealer Manager Agreement and pricing agreement providing for the Exchange;
(vi) to take any other actions necessary or desirable to carry out any of the foregoing activities; and
(vii) to designate itself or an Affiliate to be the Securities Registrar.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company ActAct of 1940, and will not be taxable as amended, or classified other than as a "grantor trust trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (the "Certificate of Trust Trust") or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their its discretion to be necessary or desirable for such purposes, as long as such action does not materially adversely affect in any material respect the interests of the Holders holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Tu Electric Capital Ii), Trust Agreement (Tu Electric Capital I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Purchase Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in execute the filing Registration Rights Agreement on behalf of the Issuer Trust;
(G) execute and file with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto, as contemplated by the Registration Rights Agreement;
(GH) unless otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Debentures Purchase Agreement and the Common Securities Purchase Agreement; and
(HI) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.,
Appears in 2 contracts
Samples: Trust Agreement (FCB Nc Capital Trust I), Trust Agreement (FCB/Sc Capital Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees Sponsor is hereby authorized and the Administrators shall conduct the affairs directed, as an agent on behalf of the Issuer Trust Trust, to engage in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as followsactivities:
(i) each Administrator, acting jointly or singly, shall:
(A) comply to prepare and file with the Placement Agreement regarding the issuance Commission and sale execute, in each case on behalf of the Trust Securities;
Trust, (Ba) assist in compliance with any registration statement from time to time on Form S-1 or any applicable form at such time, as applicable (a “1933 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, including any preliminary prospectus, prospectus, prospectus supplement, free writing prospectus or pricing supplement relating thereto, relating to the registration of any Shares under the Securities Act, applicable state securities or blue sky laws(b) any registration statement filed, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchangesfrom time to time, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DRule 462(b) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to (the Trust Securities“462(b) Registration Statement” and, together with the 1933 Act Registration Statement, the “Registration Statements”), including any amendments thereto, relating to the registration of any Shares under the Securities Act and (c) as applicable, a registration statement on Form 8-A (a “1934 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, relating to the registration of any Shares under Section 12(b) or (g) of the Exchange Act;
(Gii) unless otherwise required by to prepare and file with the Trust Indenture ActNew York Stock Exchange and/or any other securities exchange and execute, in each case on behalf of the Trust, a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Shares to be listed or quoted on the New York Stock Exchange and/or any other securities exchange;
(iii) to prepare and file and execute, in each case on behalf of the Trust, such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers, applications, filings and other documents as shall be necessary or desirable to register the Shares under the securities or “blue sky” laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iv) to select underwriters or other purchasing or placement agents relating to the public offering or any issuance of any Shares pursuant to any Registration Statements;
(v) to negotiate the terms and conditions of, and execute on behalf of the Issuer Trust Trust, any documents that underwriting agreements or other purchase or placement agreements or other agreements relating to the Administrators have the power to execute pursuant to this Trust Agreementpublic or private offering of any Shares in exchange for Sponsor Interests, including including, without limitation, agreements relating to the Debenture Purchase Agreement registration of such Shares;
(vi) to execute and deliver, in each case on behalf of the Common Trust, such certifications or reports required by the Xxxxxxxx-Xxxxx Act of 2002 from time to time as may be necessary or proper to the conduct of the business of the Trust;
(vii) to pay any filing, application or other fees associated with any of the foregoing actions, including those to the Commission, the National Association of Securities Purchase AgreementDealers, any securities exchange, any agents or any other Person;
(viii) to select a transfer agent, including the Transfer Agent, and negotiate the terms and conditions of, and execute on behalf of the Trust, a transfer agent agreement; and
(Hix) take to select a custodian as holder of any action incidental to the foregoing as necessary or advisable to give effect to Trust Property and negotiate the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act conditions of, and execute on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment AccountTrust, a custodian agreement;
(Bx) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with negotiate 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorconditions of, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting execute on behalf of the Issuer Trust) shall not undertake , from time to time a depositary share agreement, or any businessreplacement thereof, activity with a nationally recognized bank with combined capital and surplus of $50 million or transaction except as expressly provided herein or contemplated hereby. In particular, neither more for the Issuer Trustees nor purpose of establishing a depositary share program for the Administrators shall (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 Shares of the Trust Property or interests therein, including and to Holders, except engage such nationally recognized bank as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.agent with respect thereto;
(cxi) In connection with to negotiate the issue terms and sale of the Capital Securitiesconditions of, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect execute on behalf of the Issuer Trust, the following (such agreements, documents 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trustcertificates, and to do such other acts and things as the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents Sponsor may deem to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with (w) give effect to any of the applicable laws of any such States foregoing, (x) in connection with the offer and sale public offering or any future issuance of the Capital Securities;
Shares, (iiiy) carry out the negotiation purpose and intent of the Trust or (z) to comply or give effect to any terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale or provisions of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activitiesthis Agreement.
(db) Notwithstanding anything herein It is hereby acknowledged and agreed that in connection with any execution, filing or document referred to in clauses (i) - (xi) above, (A) any Regular Trustee or the contrarySponsor singly be, the Administrators and the Property Trustee are hereby is, authorized and directed to conduct the affairs on behalf of the Issuer Trust to file and execute such document on behalf of the Trust and to operate (B) the Issuer Trust so that the Issuer Trust will Delaware Trustee shall not be required or be deemed necessary to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness join in any such filing or action or execute on behalf of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized Trust any such document or to take any such action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Compass Group Diversified Holdings LLC), Trust Agreement (Compass Group Diversified Holdings LLC)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HE) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); and provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.; and
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with preparation by the Commission Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (First Empire State Corp), Trust Agreement (First Empire Capital Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph [(b) )] of this Section and Article VIII and in accordance with the following provisions (i), (iiA) and (iiiB), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators 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 without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the power, duty and authority to act as followson behalf of the Trust with respect to the following matters:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(Bii) assist without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, the Dealer Manager Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in compliance connection with the consummation hereof (such execution to be by the Administrative Trustees or any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account;
(v) the filing of an Issuer Tender Offer Statement on Schedule 13E-4 and any other tender offer statement required to be filed with the Securities Actand Exchange Commission and the conduct of the Exchange Offer as described therein and in the Dealer Manager Agreement;
(vi) the registration of the Preferred Securities under the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(Cvii) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Dviii) execute the Trust appointment of a Paying Agent and Securities on behalf of the Issuer Trust Registrar in accordance with this Trust Agreement;
(Eix) execute and deliver an application for a taxpayer identification number for registering transfers of the Issuer TrustTrust Securities in accordance with this Trust Agreement;
(Fx) assist in the filing with the Commission, at such time as unless otherwise determined by the Depositor, any registration statement, if any, under Depositor or the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless Property Trustee or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute and deliver on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation;
(xi) to the extent provided in this Trust Agreement, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common Securities Purchase Agreementpreparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(Hxii) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect to the terms of this Trust Agreementany such action on any particular Securityholder).
(iiB) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(Ai) the establishment of the Payment Account;
(Bii) the receipt of the Junior Subordinated Debentures;
(Ciii) the receipt and collection deposit of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(Div) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(Fv) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders in accordance with the terms of this Trust Agreement;
(Gvi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(Hvii) to the extent as provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(Iviii) after an Event the taking of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action Trustee may from time to give effect time determine is necessary or advisable to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing in . Subject to this Section 2.8(a)(ii) shall require 2.07(a)(B), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under Administrative Trustee set forth in Section 2.07(a)(A) or the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingDepositor set forth in Section 2.07(c).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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) to prepare for filing by the preparation, execution and filing Trust with the Commission of and to execute a registration statement on the appropriate form under the Securities Act or the preparation of offering documents Form S-4 in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto;
(ii) to determine the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) to prepare for filing by the negotiation Trust an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale issuance of the Capital any Preferred Securities; and;
(iv) to prepare for filing by the taking Trust with the Commission and to execute a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), including any amendments thereto;
(v) to select the investment banker or bankers to act as dealer managers with respect to the exchange by the Depositor of Preferred Securities for Depositary Shares ("Exchange") and negotiate the terms of a Dealer Manager Agreement and pricing agreement providing for the Exchange;
(vi) to take any other actions necessary or desirable to carry out any of the foregoing activities; and
(vii) to designate itself or an affiliate to be the Securities Registrar.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company ActAct of 1940, and will not be taxable as amended, or classified other than as a "grantor trust trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate certificate of trust filed with the Secretary of State of the state of Delaware with respect to the Trust or this Trust AgreementAgreement (the "Certificate of Trust"), that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their its discretion to be necessary or desirable for such purposes, as long as such action does not materially adversely affect in any material respect the interests of the Holders holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Tu Electric Capital I), Trust Agreement (Tu Electric Capital Ii)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation Junior Subordinated Debenture Subscription Agreements, the Debenture Purchase Common Securities Subscription Agreements, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (i) acquire any investments investments, reinvest the proceeds derived from 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) take any action that would reasonably be expected to cause the Issuer Trust to fail or cease to qualify as a grantor trust for United States Federal income tax purposes or to cause the Issuer Trust to become taxable other than as a grantor trust corporation or a partnership for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Issuer Trust other than the Trust Securities or (vvi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, a free writing prospectus and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable as a corporation, a partnership or any other arrangement other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Morgan Stanley), Trust Agreement (Morgan Stanley)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;; and
(FE) assist in the filing with the Commission, at such time as determined by the Depositor, any preparation of a registration statement, if any, under the Securities Act relating statement and a prospectus in relation to the Trust Preferred Securities, including any amendments thereto;thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act.
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) 24 - 19 - 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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(ivv) compliance with the taking of any other actions necessary or desirable to carry out any listing requirements of the foregoing activitiesPreferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (National Penn Bancshares Inc), Trust Agreement (National Penn Bancshares Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation Junior Subordinated Debenture Subscription Agreements, the Debenture Purchase Common Securities Subscription Agreements, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (i) acquire any investments investments, reinvest the proceeds derived from 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) take any action that would reasonably be expected to cause the Issuer Trust to fail or cease to qualify as a grantor trust for United States Federal income tax purposes or to cause the Issuer Trust to become taxable other than as a grantor trust corporation or a partnership for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Issuer Trust other than the Trust Securities or (vvi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement, Trust Agreement (Morgan Stanley Capital Trust VIII)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each Administrator, acting jointly or singly, shallEach Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Issuer Trust to enter into, and to execute and deliver on behalf of the Issuer Trust, the Expense Agreement and such other agreements as may be necessary or desirable in compliance connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Capital Securities Act, under the Securities Act and under applicable state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Subordinated Debentures to the Holders in accordance with this Trust Agreement;
(EF) execute the consent to the appointment of a Paying Agent and deliver an Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(G) the execution of the Trust Securities in accordance with this Trust Agreement;
(H) the execution and delivery of closing certificates pursuant to the Underwriting Agreement and the application for a taxpayer identification number for the Issuer Trust;
(FI) assist to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Issuer Trust and the preparation and filing of the certificate of cancellation with the Commission, at such time as determined by Secretary of State of the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments theretoState of Delaware;
(GJ) unless otherwise required by the Trust Indenture Actapplicable law, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HK) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
(ii) The Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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); providedand
(J) any of the duties, howeverliabilities, that nothing powers or the authority of the Administrative Trustees set forth herein; and in this Section 2.8(a)(ii) shall require the event of a conflict between the action of Administrative Trustees and the action of the Property Trustee, the action of the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingprevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators Administrative Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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) take any action that would reasonably be expected to cause the Issuer Trust to become be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall shall, at the sole cost and expense of the Issuer Trust, defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Trust of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) if the Depositor shall desire, the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing, upon notice of issuance, of any Capital Securities;
(iv) the preparation for filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Capital Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the preparation and execution of a Letter of Representations to The Depository Trust Company on behalf of the Issuer Trust;
(vi) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(ivvii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company 1940 Act, and will not or to be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property each Administrative Trustee and Holders of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Administrative Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Goldman Sachs Group Inc/), Trust Agreement (Goldman Sachs Group Inc/)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation Junior Subordinated Debenture Subscription Agreements, the Debenture Purchase Common Securities Subscription Agreements, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Morgan Stanley), Trust Agreement (Morgan Stanley Dean Witter & Co)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HE) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); and provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with the listing requirements of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.; and
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (i) acquire any 24 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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with preparation by the Commission Issuer Trust of a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Jeffbanks Inc), Trust Agreement (Jeffbanks Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act as followsAdministrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust SecuritiesSecurities and the compliance with the Underwriting Agreement in connection therewith;
(B) assist to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Underwriting Agreement, the Expense Agreement and such other agreements or documents as may be necessary or desirable in compliance connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Preferred Securities upon The Nasdaq National Market or such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required the compliance with the listing requirements of The Nasdaq National Market or if requested by the Depositor, applicable securities exchanges and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Securityholders in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist the appointment of a Paying Agent, Authenticating Agent and Securities Registrar in the filing accordance with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the this Trust Securities, including any amendments theretoAgreement;
(G) unless otherwise required by to the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to extent provided in this Trust Agreement, including without limitation, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities Purchase Agreementor to enable the Trust to effect the purposes for which the Trust was created; and
(HI) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) registering transfers of the Trust Securities in accordance with this Trust Agreement; provided, however, that nothing and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 2.7(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, or acquire any assets, in each case, except as expressly provided herein, ; (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or issue any other debt, ; or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, the Debentures, and the Guarantee, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or or, register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) the negotiation preparation for filing by the Trust and execution on behalf of the terms of, Trust of an application to The Nasdaq National Market or a national stock exchange or other organizations for listing upon notice of issuance of any Preferred Securities and to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notifications and documents as may be necessary from time to time;
(iv) the preparation for filing by the Trust with the Commission and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale on behalf of the Capital SecuritiesTrust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will shall not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not shall be taxable other than classified as a "grantor trust trust" and not as an association taxable as a corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will shall be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, subject to Section 10.2, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust law or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Trustees determines in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (First Merchants Corp), Trust Agreement (First Merchants Corp)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist in the filing with the Commission, at such time as determined by the Depositor, any preparation of a registration statement, if any, under the Securities Act relating statement and a prospectus in relation to the Trust Preferred Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Aici Capital Trust), Trust Agreement (Aici Capital Trust)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 207 and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act as followsAdministrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust SecuritiesSecurities and the compliance with the Underwriting Agreement in connection therewith;
(B) assist to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and such other agreements or documents as may be necessary or desirable in compliance connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Preferred Securities upon The Nasdaq National Market(SM) or such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange ActAt, if required the compliance withthe listing requirementes of The Nasdaq National Market(SM) or if requested by the Depositor, applicable securities exchanges and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Securityholders in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist the appointment of a Paying Agent, Conversion Agent, Authenticating Agent and Securities Registrar in the filing accordance with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the this Trust Securities, including any amendments theretoAgreement;
(G) unless otherwise required by to the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to extent provided in this Trust Agreement, including without limitation, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities Purchase Agreementor to enable the Trust to effect the purposes for which the Trust was created; and
(HI) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) registering transfers of the Trust Securities in accordance with this Trust Agreement; provided, however, that nothing and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 207(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, ; (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or issue any other debt, ; or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, the Debentures, and the Guarantee, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or or, register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to The Nasdaq National Market(SM) or a national stock exchange or other organizations for listing upon notice of issuance of any Preferred Securities and to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notifications and documents as may be necessary from time to time;
(iv) the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will shall not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not shall be taxable other than classified as a "grantor trust trust" and not as an association taxable as a corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will shall be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, subject to Section 1002, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust law or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Trustees determines in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in Section 2.6 and paragraph (b) of this Section Section, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the exclusive power, duty and the Administrators shall act as followsauthority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrator, acting jointly or singly, shall:Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters (and any actions taken by an Administrative Trustee in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(A) comply with to issue and sell the Placement Agreement regarding Trust Securities and to invest the issuance proceeds therefrom in the Debentures, provided, however, that the Trust may issue no more than one series of Preferred Securities and sale no more than one series of Common Securities, and, provided, further, that there shall be no interests in the Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date and any other date Preferred Securities and Common Securities are sold pursuant to the Underwriters' Over-Allotment Option, subject to the issuance of Trust Securities pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Certificate Depository Agreement and such other agreements as may be necessary or incidental to the purposes and function of the Trust;
(C) to assist in compliance with the registration of the Preferred Securities under the Securities ActAct of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) to assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingforegoing (only to the extent that such listing or registration is requested by the Depositor);
(DE) execute the Trust to appoint a Paying Agent, a Securities on behalf of the Issuer Trust Registrar and an authenticating agent in accordance with this Trust Agreement;
(EF) to the extent provided in this Trust Agreement, to wind up the affairs of and liquidate the Trust and prepare, execute and deliver an application for a taxpayer identification number for file the Issuer Trust;
(F) assist in the filing certificate of cancellation with the Commission, at such time as determined by Secretary of State of the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments theretoState of Delaware;
(G) unless otherwise required by the Trust Indenture Actapplicable law, to execute on behalf of the Issuer Trust (either acting alone or together with any other Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) to take any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company required to be registered under the 1940 Act;
(ii) causing the Trust to be classified for United States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Depositor to ensure that the Debentures will be treated as indebtedness of the Depositor for United States federal income tax purposes; provided that such action does not adversely affect in any material respect the interests of Securityholders except as otherwise provided in Section 10.2(a).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to the Holders Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default default, other notices and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing in ;
(J) subject to this Section 2.8(a)(ii) shall require 2.7(a)(ii), the Property Trustee to take any action that is not otherwise required shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in this Trust Agreement.Section 2.7(a)(i); and
(iiiK) The Administrators shall comply with the listing requirements of the Capital to act as Paying Agent and/or Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant Registrar to the foregoingextent appointed as such hereunder.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trust shall not, and the Trustees nor shall not and shall cause the Administrators shall Trust not to, (i) invest any proceeds received by the Trust from holding the Debentures (rather, the Trustees shall distribute all such proceeds to the Securityholders pursuant to the terms of this Trust Agreement and the Trust Securities), 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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, (iv) make any loans or incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) possess any power or otherwise act in such a way as to vary the Trust assets or the terms of the Trust Securities in any way whatsoever except as expressly provided hereinpermitted by the terms of this Trust Agreement, or (vii) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Trust, the following actions (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) to file by the preparation, execution and filing Trust with the Commission and to execute on behalf of a the Trust one or more registration statement statements on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto;
(ii) the determination of to determine the states and foreign jurisdictions in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of resale all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer states and sale of the Capital Securitiesforeign jurisdictions;
(iii) to the negotiation extent necessary, to prepare for filing by the Trust with the Commission and to execute on behalf of the terms ofTrust a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, including any amendments thereto;
(iv) to negotiate, and to execute and deliver, on behalf of the execution and delivery ofTrust, the Placement Pricing Agreement and the Purchase Underwriting Agreement providing for incorporated therein;
(v) to list the sale Preferred Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor and the preparation and filing of all periodic and other reports and other documents pursuant to the Capital Securitiesforegoing; and
(ivvi) the taking of any other actions necessary or desirable incidental to carry carrying out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company 1940 Act, and will not be taxable other than or taxed as a grantor trust corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their discretion to be necessary or desirable for such purposes, as so long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Preferred Securities except as otherwise provided in Section that results from a change in law or regulations or in the interpretation thereof10.2(a).
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees Sponsor is hereby authorized and the Administrators shall conduct the affairs directed, as an agent on behalf of the Issuer Trust Trust, to engage in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as followsactivities:
(i) each Administrator, acting jointly or singly, shall:
(A) comply to prepare and file with the Placement Agreement regarding the issuance Commission and sale execute, in each case on behalf of the Trust Securities;
Trust, (Ba) assist in compliance with any registration statement from time to time on Form S-1 or any applicable form at such time, as applicable (a “1933 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, including any preliminary prospectus, prospectus, prospectus supplement, free writing prospectus or pricing supplement relating thereto, relating to the registration of any Shares under the Securities Act, applicable state securities or blue sky laws(b) any registration statement filed, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchangesfrom time to time, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DRule 462(b) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to (the Trust Securities“462(b) Registration Statement” and, together with the 1933 Act Registration Statement, the “Registration Statements”), including any amendments thereto, relating to the registration of any Shares under the Securities Act and (c) as applicable, a registration statement on Form 8-A (a “1934 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, relating to the registration of any Shares under Section 12(b) or (g) of the Exchange Act;
(Gii) unless otherwise required by to prepare and file with the Trust Indenture ActNasdaq Global Market and/or any other securities exchange and execute, in each case on behalf of the Trust, a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Shares to be listed or quoted on the Nasdaq Global Market and/or any other securities exchange;
(iii) to prepare and file and execute, in each case on behalf of the Trust, such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers, applications, filings and other documents as shall be necessary or desirable to register the Shares under the securities or “blue sky” laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iv) to select underwriters or other purchasing or placement agents relating to the public offering or any issuance of any Shares pursuant to any Registration Statements;
(v) to negotiate the terms and conditions of, and execute on behalf of the Issuer Trust Trust, any documents that underwriting agreements or other purchase or placement agreements or other agreements relating to the Administrators have the power to execute pursuant to this Trust Agreementpublic or private offering of any Shares in exchange for Sponsor Interests, including including, without limitation, agreements relating to the Debenture Purchase Agreement registration of such Shares;
(vi) to execute and deliver, in each case on behalf of the Common Trust, such certifications or reports required by the Sxxxxxxx-Xxxxx Act of 2002 from time to time as may be necessary or proper to the conduct of the business of the Trust;
(vii) to pay any filing, application or other fees associated with any of the foregoing actions, including those to the Commission, the National Association of Securities Purchase AgreementDealers, any securities exchange, any agents or any other Person;
(viii) to select a transfer agent, including the Transfer Agent, and negotiate the terms and conditions of, and execute on behalf of the Trust, a transfer agent agreement; and
(Hix) take to select a custodian as holder of any action incidental to the foregoing as necessary or advisable to give effect to Trust Property and negotiate the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act conditions of, and execute on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment AccountTrust, a custodian agreement;
(Bx) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with negotiate 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorconditions of, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting execute on behalf of the Issuer Trust) shall not undertake any business, activity a depositary share agreement with a nationally recognized bank with combined capital and surplus of $50 million or transaction except as expressly provided herein or contemplated hereby. In particular, neither more for the Issuer Trustees nor purpose of establishing a depositary share program for the Administrators shall (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 Shares of the Trust Property or interests therein, including (the “Depositary Agreement”) and to Holders, except engage such nationally recognized bank as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.agent with respect thereto;
(cxi) In connection with to negotiate the issue terms and sale of the Capital Securitiesconditions of, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect execute on behalf of the Issuer Trust, the following (such agreements, documents 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trustcertificates, and to do such other acts and things as the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents Sponsor may deem to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with (w) give effect to any of the applicable laws of any such States foregoing, (x) in connection with the offer and sale public offering or any future issuance of the Capital Securities;
Shares, (iiiy) carry out the negotiation purpose and intent of the Trust or (z) to comply or give effect to any terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale or provisions of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activitiesthis Agreement.
(db) Notwithstanding anything herein It is hereby acknowledged and agreed that in connection with any execution, filing or document referred to in clauses (i) — (ix) above, (A) any Regular Trustee or the contrarySponsor singly be, the Administrators and the Property Trustee are hereby is, authorized and directed to conduct the affairs on behalf of the Issuer Trust to file and execute such document on behalf of the Trust and to operate (B) the Issuer Trust so that the Issuer Trust will Delaware Trustee shall not be required or be deemed necessary to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness join in any such filing or action or execute on behalf of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized Trust any such document or to take any such action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Compass Group Diversified Holdings LLC)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act have the authority to enter into all transactions and agreements determined by the Issuer Trustees or the Administrators to be appropriate in exercising the authority granted to the Issuer Trustees or the Administrators, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each AdministratorEach Administrator shall have the power, acting jointly or singly, shallduty and authority to act on behalf of the Trust with respect to the following matters in accordance with the terms of this Trust Agreement:
(A) comply with the Placement Agreement regarding the issuance and sale of the Preferred Securities and the Common Securities;
(B) to acquire the Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the Administrators shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders of the Trust Securities;
(BC) assist the execution of the Trust Securities on behalf of the Trust in compliance accordance with this Trust Agreement;
(D) the negotiation of the terms, and execution and delivery, for and on behalf of the Trust, of the Underwriting Agreement providing for the sale of the Preferred Securities;
(E) to cause the Trust to enter into, and to execute, deliver, file and perform on behalf of the Trust, the DTC Letter of Representations and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust;
(F) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CG) assist assisting in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DH) execute assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Holders in accordance with this Trust Agreement;
(EI) execute the appointment of a Paying Agent, authenticating agent and deliver an application for a taxpayer identification number for the Issuer TrustSecurities Registrar in accordance with this Trust Agreement;
(FJ) assist in the filing with the Commission, at such time as unless otherwise determined by the Depositor, any registration statement, if any, under Property Trustee or the Holders of at least a majority in aggregate Liquidation Amount of the Preferred Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, execute the execution on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrators) of any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and;
(HK) take entering into such agreements and arrangements and taking any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; and
(L) providing the Issuer Trustees with prompt written notice of the occurrence of a Special Event. The Administrators shall have only those ministerial duties set forth herein with respect to accomplishing the purposes of the Trust and shall not be trustees or, to the fullest extent permitted by law, fiduciaries with respect to the Trust or the Holders. Unless otherwise determined by the Administrators, any Administrator is authorized to execute on behalf of the Trust any documents which the Administrators have the power and authority to execute pursuant to this Trust Agreement.
(ii) The Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following mattersmatters in accordance with the terms of this Trust Agreement:
(A) the establishment and maintenance of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts from the Payment Account owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust AgreementProperty;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); providedand
(J) engaging in such Ministerial Activities as shall be necessary, howeverappropriate, that nothing in this Section 2.8(a)(ii) shall require convenient or incidental to effect the Property Trustee repayment of the Preferred Securities and the Common Securities to take any action that is not otherwise required in this Trust Agreementthe extent the Debentures mature or are redeemed.
(iii) The Administrators Property Trustee shall comply with have the listing requirements power and authority to act on behalf of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration Trust with respect to any of the Capital Securities under duties, liabilities, powers or authority of the Exchange ActAdministrators set forth in Section 2.7(a)(i)(H), if required or if (I) and (K) herein, but shall not have a duty to do any such act unless specifically requested to do so in writing by the Depositor, and the preparation and filing of all periodic and other reports and other documents shall then be fully protected in acting pursuant to such written request; and in the foregoingevent of a conflict between the action of the Administrators and the action of the Property Trustee, the action of the Property Trustee shall prevail. The Property Trustee shall not transfer or assign its rights, title and interest in and to the Debentures to the Administrators or to the Delaware Trustee (if the Property Trustee does not also act as Delaware Trustee).
(iv) Except as otherwise required by the Delaware Business Trust Act, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Property Trustee, the Issuer Trustees or the Administrators set forth herein. The Delaware Trustee shall be one of the trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Delaware Business Trust Act.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall cause the Trust to (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) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) take or consent to any action that would cause the Debentures to be treated as other than indebtedness of the Corporation for United States federal income tax purposes, (v) incur any indebtedness for borrowed money or issue any other debt, debt or (vvi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrators shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue issuance and sale of the Capital Preferred Securities, the Depositor shall have the right right, duty and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions pursuant thereto;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(ivvi) the taking of any other actions deemed by the Depositor necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Issuer Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company 1940 Act, and will not be taxable other than or taxed as a grantor trust corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, each Administrator, the Property Trustee and or the Holders of at least a majority in aggregate Liquidation Amount of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such Administrator, the Property Trustee and or such Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable Administrator take any action pursuant to the Issuer preceding sentence or any other provision herein that would constitute discretionary control over the assets of the Trust or the Holders for any failure to comply with this purposes of Section that results from a change in law or regulations or in the interpretation thereof.3(21)
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including the following:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Each Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment issuance and sale of the Trust Securities;
(B) causing the Issuer Trust to enter into, and to execute, deliver and perform on behalf of the Issuer Trust, the Expense Agreement, the Registration Rights Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
(C) assisting in compliance with the duties and obligations of the Issuer Trust under the Registration Rights Agreement and the Securities Act and under applicable state securities or blue sky laws (including by means of registration of the Capital Securities thereunder from time to time),and the Trust Indenture Act;
(D) assisting in obtaining the designation of the Capital Securities for trading in PORTAL;
(E) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(G) executing the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(H) executing and delivering closing certificates, if any, pursuant to the Purchase Agreement and application for a taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or Holders of at least a Majority in Liquidation Amount of the Capital Securities or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to executing on behalf of the Issuer Trust (either acting alone or together with any other Administrative Trustee) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and
(J) taking any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) receiving the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of collecting interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution distributing through any Paying Agent of amounts owed distributable to the Holders in respect of the Trust Securities;
(E) the exercise of exercising all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distributing the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of liquidating the Issuer Trust and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions ) taking of this Trust Agreement and take 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 to 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.;
(iiiJ) The Administrators shall comply with the listing requirements performing any of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange ActAdministrative Trustees set forth in Section 2.7(a)(i)(D), if required or if requested by the Depositor, (E) and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing(I).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with preparation by the Commission Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents an Offering Circular in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States, or other jurisdictions, if any, in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Purchase Agreement and the Purchase Agreement providing Registration Rights Agreement;
(iv) if required pursuant to the Registration Rights Agreement, the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on the appropriate form in relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions pursuant thereto;
(v) if so determined by the Depositor, the preparation for filing by the sale Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of issuance of any Capital Securities;
(vi) if so determined by the Depositor, the preparation for filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Capital SecuritiesSecurities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto; and
(ivvii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property each Administrative Trustee and the Holders Holder of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such Administrative Trustee or Holder of the Property Trustee and Holders of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees Property Trustee and the Administrators Administrative Trustees shall act have the authority to enter into all transactions and agreements determined by the Property Trustee and Administrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to such Issuer Trustees, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including the following:
(i) As among the Issuer Trustees, each AdministratorAdministrative Trustee, acting jointly individually or singlyjointly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment issuance and sale of the Trust Securities;
(B) causing the Issuer Trust to enter into, and to execute, deliver and perform on behalf of the Issuer Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
(C) assisting in compliance with the duties and obligations of the Issuer Trust under and the Securities Act and under applicable state securities or blue sky laws (including by means of registration of the Capital Securities thereunder from time to time) and the Trust Indenture Act;
(D) assisting in obtaining the designation of the Capital Securities for trading in PORTAL;
(E) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(G) executing the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(H) executing and delivering closing certificates, if any, pursuant to the Purchase Agreement and application for a taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or Holders of at least a Majority in Liquidation Amount of the Capital Securities or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, executing on behalf of the Issuer Trust (either acting alone or together with any other Administrative Trustee) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and
(J) taking any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) receiving the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of collecting interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution distributing through any Paying Agent of amounts owed distributable to the Holders in respect of the Trust Securities;
(E) the exercise of exercising all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distributing the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of liquidating the Issuer Trust and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions ) taking of this Trust Agreement and take 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 to 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.;
(iiiJ) The Administrators shall comply with the listing requirements performing any of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange ActAdministrative Trustees set forth in Section 2.7(a)(i)(D), if required or if requested by the Depositor, (E) and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing(I).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators Trustees, acting in their capacity as such, 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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with preparation by the Commission Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents an Offering Circular in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States, or other jurisdictions, if any, in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital SecuritiesAgreement; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property each Administrative Trustee and the Holders Holder of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such Administrative Trustee or Holder of the Property Trustee and Holders of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Centura Banks Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein, (vi) invest any proceeds received by the Issuer Trust from holding the Junior Subordinated Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x) to issue any securities or other evidence of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital SecuritiesAgreement; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Gainsco Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer ------------------------------------------------ Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in Section 2.6 and paragraph (b) of this Section Section, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the exclusive power, duty and the Administrators shall act as followsauthority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrator, acting jointly or singly, shallAdministrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance to issue and sale of sell the Trust Securities; provided, however, -------- ------- that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and; provided, further, that there shall be no interests in the Trust other -------- ------- than the Trust Securities, and the issuance of Trust Securities shall be limited to simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date, subject to the issuance of Trust Securities pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Registration Rights Agreement, the Purchase Agreement, the Common Securities Purchase Agreement and the Certificate Depositary Agreement and such other agreements as may be necessary or incidental to the purposes and function of the Trust;
(C) to assist in compliance with the registration of the Preferred Securities under the Securities Act of 1933, as amended (the "Securities Act"), applicable and under state securities or blue sky laws, and the qualification of this Trust as a trust indenture under the Trust Indenture Act;
(CD) to assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange Actof 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingforegoing (only to the extent that listing or registration is requested by the Depositor);
(DE) execute the Trust to appoint a Paying Agent, a Securities on behalf of the Issuer Trust Registrar and an authenticating Agent in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-to wind up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware;
(G) unless otherwise determined by the Depositor, the Property Trustee or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Trust (either acting alone or together with any other Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and
(IH) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action incidental to the foregoing as the Trustees may from time to time determine is 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); providedincluding, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is but not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect limited to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.:
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities and the execution and delivery of Trust Securities Certificates representing such Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture ActAct and the Sxxxxxxx-Xxxxx Act of 2002 (and any regulations relating thereto), including, without limitation, the execution of any documents, reports or certifications required thereunder from time to time;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing, if required;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Capital Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Capital Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.; and
(iiiJ) The Administrators shall comply with the listing requirements execution, on behalf of the Capital Securities upon such securities exchange or exchangesIssuer Trust, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, Certificate Depositary Agreement and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingExpense Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) apply any of the Trust Property or its proceeds other than as provided herein, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, except as expressly provided herein, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing, if required.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (M&t Bank Corp)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation a Junior Subordinated Debenture Subscription Agreement, the Debenture Purchase a Common Securities Subscription Agreement, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement,and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken betaken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;:
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents document that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation a Subordinated Debenture Subscription Agreement, the Debenture Purchase a Common Securities Subscription Agreement, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; , and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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 at any such action on any particular Holder); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions nor exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.;
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Dillards Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in -15- 21 paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Purchase Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in execute the filing Registration Rights Agreement on behalf of the Issuer Trust;
(G) execute and file with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto, as contemplated by the Registration Rights Agreement;
(GH) unless otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Debentures Purchase Agreement and the Common Securities Purchase Agreement; and
(HI) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.for
Appears in 1 contract
Samples: Trust Agreement (Provident Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by cause the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establish and maintain the Payment Account;
(B) receive, take title to, and exercise all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receive and collection of collect interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distribute amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of send notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distribute the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-wind up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.; and
(iiiJ) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange take any action incidental or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant convenient to the foregoingforegoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; provided, however, that nothing in this Section 2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off off, or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery on behalf of the Commission Issuer Trust, of a registration statement on and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators, and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust Trust, or this Trust Agreement, that the Property Trustee Trustee, the Administrators, and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees Property Trustee and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees Property Trustee and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of DelawareConnecticut; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees Property Trustee or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees Property Trustee nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein, (vi) invest any proceeds received by the Issuer Trust from holding the Junior Subordinated Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x) to issue any securities or other evidence of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Property Trustee of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iviii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees Property Trustee be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Gainsco Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each AdministratorEach Administrator is authorized, acting jointly or singlyon behalf of the Trust, shallto:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the limitation a Junior Subordinated Debenture Purchase Agreement and the a Common Securities Purchase Agreement, both by and between the Issuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); and provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement,and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken betaken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Equitable Resources Capital Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 207 and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act as followsAdministrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust SecuritiesSecurities and the compliance with the Underwriting Agreement in connection therewith;
(B) assist to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and such other agreements or documents as may be necessary or desirable in compliance connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Preferred Securities upon The Nasdaq National Market(SM) or such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required the compliance with the listing requirements of The Nasdaq National Market(SM) or if requested by the Depositor, applicable securities exchanges and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Securityholders in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist the appointment of a Paying Agent, Authenticating Agent and Securities Registrar in the filing accordance with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the this Trust Securities, including any amendments theretoAgreement;
(G) unless otherwise required by to the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to extent provided in this Trust Agreement, including without limitation, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities Purchase Agreementor to enable the Trust to effect the purposes for which the Trust was created; and
(HI) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) registering transfers of the Trust Securities in accordance with this Trust Agreement; provided, however, that nothing and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 207(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, ; (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or issue any other debt, ; or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.the
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, statement under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Debentures Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Preferred Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (First Citizens Bancshares Inc /De/)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the power and authority, and are hereby authorized and directed, to enter into on behalf of the Administrators shall act as followsTrust all transactions and agreements determined by the Administrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority and is hereby authorized and directed to act on behalf of the Trust with respect to the following matters:
(A) to execute, deliver, issue and sell the Trust Securities on behalf of the Trust in accordance with this Trust Agreement, and cause the Trust to execute, deliver, perform and comply with the Placement terms of the Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) to acquire the Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the -------- ------- Administrative Trustees shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Securityholders;
(C) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements, instruments and documents (including, without limitation, such certificates and cross-receipts as may be necessary in connection with the issuance and sale of the Trust Securities and the purchase of the Debentures) as may be necessary or desirable in connection with the purposes and function of the Trust ;
(D) to assist in compliance with the registration of the Preferred Securities under the Securities ActAct of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act and to cause the Trust to take any action deemed in such Administrative Trustee's discretion to be necessary, advisable or convenient to comply with the Trust's obligations under the Trust Indenture Act;
(CE) to assist in the listing of the Capital Preferred Securities upon the NASDAQ Stock Market or such securities exchange or exchanges, if any, exchanges as shall be determined by the DepositorDepositor and, with if required, the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DF) execute to send notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Subordinated Debentures to the Securityholders in accordance with this Trust Agreement;
(EG) to appoint a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, to wind up the affairs of and liquidate the Trust and prepare, execute and file the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and in each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities or to enable the Trust to effect the purposes for which the Trust was created;
(J) to execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HK) to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine in their discretion is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event the taking of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) acting as Paying Agent and/or Securities Registrar to the extent appointed as such hereunder and executing and delivering letters, documents or instruments with the Clearing Agency relating to the Preferred Securities; providedincluding, howeverwithout limitation, that nothing the Certificate Depository Agreement; and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 2.07(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trust shall not, the Trustees nor shall not and the Administrators Administrative Trustees shall cause the Trust not to (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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that that, to such Trustee's actual knowledge, would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right right, power, authority and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 authorized, ratified and confirmed in all respects):
(i) the preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital SecuritiesPreferred Securities and the Subordinated Debentures, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of Subordinated Debentures and to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securitiesstates;
(iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to the NASDAQ Stock Market or a national stock exchange or other organizations for listing upon notice of issuance of any Preferred Securities (or, if applicable, the Subordinated Debentures) and to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notifications and documents as may be necessary from time to time;
(iv) if required, the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities (or, if applicable, the Subordinated Debentures) under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(vi) the negotiation of the terms of, and execution of, the Original Trust Agreement, and the preparation of this Trust Agreement and the selection of the Trustees;
(vii) the execution, delivery and performance of the Certificate Depository Agreement and such other agreements and instruments as may be necessary or incidental to the purposes and functions of the Trust; and
(ivviii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than classified as a "grantor trust trust" and not as an association taxable as a corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, subject to Section 10.02, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust law or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders Securityholders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each Administrator, acting jointly or singly, shallEach Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Issuer Trust to enter into, and to execute and deliver on behalf of the Issuer Trust, the Expense Agreement and such other agreements as may be necessary or desirable in compliance connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Capital Securities Act, under the Securities Act and under applicable state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Subordinated Debentures to the Holders in accordance with this Trust Agreement;
(EF) execute the consent to the appointment of a Paying Agent and deliver an Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(G) the execution of the Trust Securities in accordance with this Trust Agreement;
(H) the execution and delivery of closing certificates pursuant to the Underwriting Agreement and the application for a taxpayer identification number for the Issuer Trust;
(FI) assist to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Issuer Trust and the preparation and filing of the certificate of cancellation with the Commission, at such time as determined by Secretary of State of the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments theretoState of Delaware;
(GJ) unless otherwise required by the Trust Indenture Actapplicable law, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HK) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
(ii) The Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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); providedand
(J) any of the duties, howeverliabilities, that nothing powers or the authority of the Administrative Trustees set forth herein; and in this Section 2.8(a)(ii) shall require the event of a conflict between the action of the Administrative Trustees and the action of the Property Trustee, the action of the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingprevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators Administrative Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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) take any action that would reasonably be expected to cause the Issuer Trust to become be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall shall, at the sole cost and expense of the Issuer Trust, defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Trust of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) if the Depositor shall desire, the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing, upon notice of issuance, of any Capital Securities;
(iv) the preparation for filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Capital Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the preparation and execution of a Letter of Representations to The Depository Trust Company on behalf of the Issuer Trust;
(vi) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(ivvii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company 1940 Act, and will not or to be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property each Administrative Trustee and Holders of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Administrative Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each Administrator, acting jointly or singly, shallEach Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Issuer Trust to enter into, and to execute and deliver on behalf of the Issuer Trust, the Expense Agreement and such other agreements as may be necessary or desirable in compliance connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Capital Securities Act, under the Securities Act and under applicable state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Junior Subordinated Debentures to the Holders in accordance with this Trust Agreement;
(EF) execute the consent to the appointment of a Paying Agent and deliver an Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(G) the execution of the Trust Securities in accordance with this Trust Agreement;
(H) the execution and delivery of closing certificates pursuant to the Underwriting Agreement and the application for a taxpayer identification number for the Issuer Trust;
(FI) assist to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Issuer Trust and the preparation and filing of the certificate of cancellation with the Commission, at such time as determined by Secretary of State of the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments theretoState of Delaware;
(GJ) unless otherwise required by the Trust Indenture Actapplicable law, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HK) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
(ii) The Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators Administrative Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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) take any action that would reasonably be expected to cause the Issuer Trust to become be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall shall, at the sole cost and expense of the Issuer Trust, defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Trust of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) if the Depositor shall desire, the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing, upon notice of issuance, of any Capital Securities;
(iv) the preparation for filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Capital Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the preparation and execution of a Letter of Representations to The Depository Trust Company on behalf of the Issuer Trust;
(vi) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(ivvii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company 1940 Act, and will not or to be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property each Administrative Trustee and Holders of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Administrative Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section Section, and in accordance with the following provisions (i), ) and (ii) the Trustees shall have the authority to enter into all transactions and (iii)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, without limitation, the Issuer Trustees and the Administrators shall act as followsfollowing:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Each Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) to establish the terms and form of the Preferred Securities and the Common Securities and issue and sell the Trust Securities in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further, that there shall be no interests in the Trust other than the Trust Securities, and the issuance of Securities shall be limited to a simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act, as the same may be deemed necessary or advisable;
(D) assisting in the listing, if any, of the Preferred Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Securities under the Exchange Act, if required by applicable law, and the execution and filing of all applications, periodic and other reports and other documents pursuant to the foregoing, or the seeking of relief from the same;
(E) to purchase the Debentures with the gross proceeds from the issuance and sale of the Preferred Securities and the Common Securities; provided, however, that the Administrative Trustees shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders of the Preferred Securities and the Holders of the Common Securities;
(F) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(G) the consent to the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement which consent shall not be unreasonably withheld;
(H) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement;
(I) the taking of any action as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement or the Trust Securities for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder);
(J) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants to conduct only those services that the Administrative Trustees have authority to conduct directly, and to pay reasonable compensation for such services;
(K) to cause the Trust to comply with the Trust’s obligations under the Trust Indenture Act;
(L) execution and delivery of closing certificates, if any, pursuant to the Underwriting Agreement and application for a taxpayer identification number for the Trust;
(M) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(N) execution and delivery of letters or documents to, or instruments with DTC relating to the Preferred Securities;
(O) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(P) unless otherwise required by the Trust Indenture Act, to execute on behalf of the Trust (either acting alone or together with the other Administrative Trustee) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement;
(Q) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Trust Securities as to such actions and applicable record dates;
(R) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the Trust and to provide to each beneficial owner of a Trust Security any additional information that the beneficial owner reasonably requests in order for the beneficial owner to comply with the federal, state or local tax and information returns and reporting obligations;
(S) to incur expenses that are necessary or incidental to carry out any of the purposes of the Trust;
(T) if applicable, to give prompt written notice to the Holders of the Trust Securities of any notice received from the Depositor of its election to defer payments of interest on the Debentures by extending the interest payment period under the Debentures as authorized by the Indenture; and
(U) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust’s valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities and the Holders of the Common Securities or to enable the Trust to effect the purposes for which the Trust was created.
(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 establishment of the Payment Account;
(B) the receipt of the Junior Subordinated DebenturesDebentures and holding legal title of the Debentures for the benefit of the Trust and the holders of the Trust Securities;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to the Holders Securityholders in respect of the Trust Securities;
(E) subject to the provisions hereof, the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4c), or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing in this Section 2.8(a)(iiand
(J) shall require the Property Trustee to take any all reasonable action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with at the listing requirements direction of the Capital Securities upon such securities exchange Depositor that may be necessary or exchanges, if any, as shall be determined by appropriate for the Depositor, preservation and the registration continuation of the Capital Securities Trust’s valid existence, rights, franchises and privileges as a statutory trust under the Exchange Act, if required laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities or if requested by to enable the Depositor, and Trust to effect the preparation and filing of all periodic and other reports and other documents pursuant to purposes for which the foregoingTrust was created.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither no Trustee shall, on behalf of the Issuer Trustees nor the Administrators shall Trust, (i) acquire any investments or assets other than the Trust Property 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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that would is reasonably expected to cause the Issuer Trust to become taxable fail or cease to qualify as a “grantor trust” or cause the Debentures to be treated as other than as a grantor trust indebtedness of the Depositor, for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue issuance and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a “shelf” registration statement on the appropriate form under form, including amendments thereto, to register the Securities Act or Preferred Securities, the preparation of offering documents in reliance on one or more exemptions from registration under Guarantee and the Securities Act with respect to the Capital SecuritiesDebentures;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securitiesstates;
(iii) if the Depositor shall desire, the preparation for filing by the Trust and execution on behalf of the Trust of an application to the New York Stock Exchange or any other national or international stock exchange or the Nasdaq National Market or any other automated quotation system for listing, upon notice of issuance, of any Preferred Securities; and the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto; and filing with such exchange or self-regulatory organization such notifications and documents as may be necessary from time to time to maintain such listing;
(iv) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators Administrative Trustees and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not 1940 Act or fail to be taxable other than classified as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this regard, the Property Trustee shall be protected if it shall have conducted the affairs of the Trust and operated the Trust in accordance with its rights, powers and duties as specifically set forth in this Trust Agreement. In this connection, the Administrative Trustees, the Property Trustee and the Holders Holder of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that any of the Administrative Trustees, Property Trustee and Holders the Holder of the Common Securities determine determines in their its discretion to be necessary or desirable for such purposes, as long as such action does not materially adversely affect in any material respect the interests of the Holders of the Outstanding Capital Preferred Securities. In no event The Property Trustee shall not be required to take any action under this clause (d) unless directed to do so by the Administrators Depositor, the Administrative Trustees or the Issuer Trustees be liable (subject to the Issuer provisions hereof) by Holders of not less than a Majority in Liquidation Amount of the Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereofSecurities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 207 and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act as followsAdministrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust SecuritiesSecurities and the compliance with the Underwriting Agreement in connection therewith;
(B) assist to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and such other agreements or documents as may be necessary or desirable in compliance connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Preferred Securities upon The Nasdaq National Market/sm/ or such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required the compliance with the listing requirements of The Nasdaq National Market/sm/ or if requested by the Depositor, applicable securities exchanges and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Securityholders in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist the appointment of a Paying Agent, Authenticating Agent and Securities Registrar in the filing accordance with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the this Trust Securities, including any amendments theretoAgreement;
(G) unless otherwise required by to the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to extent provided in this Trust Agreement, including without limitation, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities Purchase Agreementor to enable the Trust to effect the purposes for which the Trust was created; and
(HI) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) registering transfers of the Trust Securities in accordance with this Trust Agreement; provided, however, that nothing and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 207(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, ; (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or issue any other debt, ; or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, the Debentures, and the Guarantee, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or or, register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to The Nasdaq National Market/sm/ or a national stock exchange or other organizations for listing upon notice of issuance of any Preferred Securities and to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notifications and documents as may be necessary from time to time;
(iv) the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will shall not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not shall be taxable other than classified as a "grantor trust trust" and not as an association taxable as a corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will shall be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, subject to Section 1002, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust law or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Trustees determines in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) ------------------------------------------------- The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in Section 2.6 and paragraph (b) of this Section Section, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the exclusive power, duty and the Administrators shall act as followsauthority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrator, acting jointly or singly, shallAdministrative Trustee shall have the exclusive power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance to issue and sale of sell the Trust Securities, provided, however, -------- ------- that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided, further, that there shall be no interests in the Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date and any other date Preferred Securities and Common Securities are sold pursuant to the over- allotment option granted to the Underwriters named in the Underwriting Agreement, subject to the issuance of Trust Securities pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Certificate Depository Agreement and such other agreements as may be necessary or incidental to the purposes and function of the Trust;
(C) to assist in compliance with the registration of the Preferred Securities under the Securities ActAct of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) to assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingforegoing (only to the extent that such listing or registration is requested by the Depositor);
(DE) execute the Trust to appoint a Paying Agent, a Securities on behalf of the Issuer Trust Registrar and an authenticating agent in accordance with this Trust Agreement;
(EF) to the extent provided in this Trust Agreement, to wind up the affairs of and liquidate the Trust and prepare, execute and deliver an application for a taxpayer identification number for file the Issuer Trust;
(F) assist in the filing certificate of cancellation with the Commission, at such time as determined by Secretary of State of the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments theretoState of Delaware;
(G) unless otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Issuer Trust (either acting alone or together with any other Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) to take any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company required to be registered under the 1940 Act;
(ii) causing the Trust to be classified for United States Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Depositor to ensure that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes; provided that such action does not adversely affect in any material -------- respect the interests of Securityholders except as otherwise provided in Section 10.2(a).
(I) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing.
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to the Holders Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default default, other notices and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of which a Responsible Officer of the definition Property Trustee has knowledge, the taking of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing in ;
(J) subject to this Section 2.8(a)(ii) shall require 2.7(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains Administrative Trustees set forth in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital SecuritiesSection 2.7(a)(i); and
(ivK) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein act as Paying Agent and/or Securities Registrar to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their discretion to be necessary or desirable for such purposes, as long extent appointed as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereofhereunder.
Appears in 1 contract
Samples: Trust Agreement (Alcoa Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities;
(ii) , including any amendments thereto and the determination taking of the states in which any action necessary or desirable to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of sell the Capital Securities and in a transaction or a series of transactions subject to the determination of any and all such acts, other than actions that must be taken by or on behalf registration requirements of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesSecurities Act;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph subsection (b) of this Section 2.7 and in accordance with the following provisions clauses (i), ) and (ii) and (iii)herein below, the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees, as followsthe case may be, under this Trust Agreement and to perform all acts in furtherance thereof, including, without limitation, the following:
(i) As among the Issuer Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlycollectively, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) effecting the establishment issuance of the Trust Preferred Securities and exchanging the Trust Preferred Securities for the Preferred Stock;
(B) effecting the issuance and sale of the Trust Common Securities;
(C) acquiring the Debentures from the Depositor in part through exchange of Preferred Stock and in part by purchase;
(D) causing the Issuer Trust to enter into, and to execute, deliver and perform such agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
(E) if requested by the Depositor, assisting in the registration of the Trust Preferred Securities under the Securities Act and applicable state securities or "Blue Sky" laws and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(F) if requested by the Depositor, assisting in the listing of the Trust Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor, with the registration of the Trust Preferred Securities under the Exchange Act and with the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(G) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement;
(H) consenting to the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(I) executing the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(J) applying for a taxpayer identification number for the Issuer Trust; and
(K) taking any action incidental to the foregoing as the Issuer Trustees may from time to time determine to be necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) effecting the receipt authentication and delivery of the Junior Subordinated DebenturesTrust Preferred Securities Certificates, upon the written request of the Depositor, to the registered holders thereof and the delivery of the Preferred Stock and the Trust Common Securities to the Depositor;
(C) holding the receipt and collection of Debentures;
(D) collecting interest, principal and any other payments made in respect of the Junior Subordinated Debentures and holding such amounts in the Payment Account;
(DE) distributing through the distribution Paying Agent of amounts owed distributable to the Holders in respect of the Trust Securities;
(EF) the exercise of exercising all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(FG) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(GH) the distribution of distributing the Trust Property in accordance with the terms of this Trust Agreement;
(HI) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(IJ) performing the duties of the Property Trustee set forth in this Trust Agreement;
(K) after an Event of Default (other than under paragraph paragraphs (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take ) taking 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); providedand
(L) exercising any of the duties, howeverliabilities, that nothing powers or the authority of the Administrative Trustees set forth in this Section 2.8(a)(ii2.7(a)(i)(E) shall require and (I) herein; and in the event of a conflict between the action of the Administrative Trustees and the action of the Property Trustee, the action of the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingprevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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-set off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Trust Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of of, the Issuer 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 preparationpreparation by the Issuer Trust of an Exchange Offer, execution Prospectus and filing with the Commission Letter of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents Transmittal in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Trust Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to issue the Trust Preferred Securities in exchange for shares of Preferred Stock of the Depositor in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the states jurisdictions in which to take appropriate action to qualify or register for offer or sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Trust Preferred Securities and the determination taking of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Trust of actions they that must take be taken by or on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States advisable, in connection with the offer and sale of Exchange Offer, the Capital Securities;
(iii) the negotiation of the terms of, Prospectus and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale Letter of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.Transmittal,
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees Property Trustee and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees Property Trustee and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the DepositorSponsor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation Junior Subordinated Debenture Subscription Agreements, the Debenture Purchase Common Securities Subscription Agreements, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Sponsor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees Property Trustee or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees Property Trustee nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor Sponsor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Trust, the following (and any actions taken by the Depositor Sponsor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Property Trustee of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Sponsor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) C of this Section Section, and in accordance with the following provisions (i), (ii) paragraphs A and (iii)B, the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators 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 without limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly or jointly, shall have the exclusive power, duty and authority to act as followson behalf of the Trust with respect to the following matters:
(i) each Administrator, acting jointly or singly, shall:
(A) comply to acquire the Subordinated Debt Securities with the Placement Agreement regarding proceeds of the issuance sale of the Trust Securities; provided, however, the Administrative Trustees shall cause legal title to all of the Subordinated Debt Securities to be vested in, and sale the Subordinated Debt Securities to be held of record in the name of, the Property Trustee for the benefit of the Trust and Holders of the Trust Securities;
(Bii) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of ss. 316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions, and exchanges, and to issue relevant notices to Holders of the Trust Securities as to such actions and applicable record dates;
(iii) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust (“Legal Action”), unless pursuant to Section 2.07(B)(v), the Property Trustee has the power to bring such Legal Action;
(iv) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services;
(v) to cause the Trust to comply with the Trust’s obligations under the Trust Indenture Act;
(vi) to give the certificate to the Property Trustee required by ss. 314(a)(4) of the Trust Indenture Act, which certificate may be executed by any Administrative Trustee;
(vii) to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Trust Agreement;
(viii) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust’s valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Trust Securities or to enable the Trust to effect the purposes for which the Trust has been created;
(ix) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust;
(x) to issue and sell the Trust Securities;
(xi) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the consummation hereof;
(xii) to assist in compliance with the registration of the Preferred Securities under the Securities ActAct of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(Cxiii) to assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Dxiv) execute to send notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Subordinated Debt Securities to the Securityholders in accordance with this Trust Agreement;
(Exv) execute to appoint a Paying Agent (subject to Section 5.09), authenticating agent and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Registrar in accordance with this Trust Agreement;
(Gxvi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to assist in, to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation termination of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(Ixvii) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action to give effect incidental to the terms of this Trust Agreement and foregoing as the Administrative Trustees may from time to time determine is necessary, appropriate, convenient or advisable to protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided.
B. As among the Trustees, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) engage in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Subordinated Debt Securities are redeemed or mature;
(ii) upon notice of distribution issued by the Administrative Trustees in accordance with the terms of this Trust Agreement, engage in such ministerial activities as shall be necessary or appropriate to effect promptly the distribution pursuant to terms of this Trust Agreement of Subordinated Debt Securities to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights, powers and privileges of a holder of the Subordinated Debt Securities under the Subordinated Indenture and, if an Event of Default occurs and is continuing, shall enforce for the benefit of, and subject to the rights of, the Holders of the Trust Securities, its rights as holder of the Subordinated Debt Securities under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement;
(v) take any action that is not otherwise Legal Action specifically required of the Property Trustee pursuant to the terms of this Trust Agreement which arises out of or in connection with an Event of Default or the Property Trustee’s duties and obligations under this Trust Agreement, the Delaware Statutory Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the Payment Account;
(vii) the receipt of and holding of legal title to the Subordinated Debt Securities as described herein;
(viii) the collection of interest, principal and any other payments made in respect of the Subordinated Debt Securities in the Payment Account;
(ix) the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other information regarding the Trust Securities and the Subordinated Debt Securities to the Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement.
(iii) The Administrators shall comply with , the listing requirements winding up of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration affairs of and termination of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, Trust and the preparation preparation, execution and filing of all periodic and other reports and other documents pursuant the certificate of cancellation with the Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoingforegoing as the Property Trustee may from time to time determine is necessary, appropriate, convenient or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(b) C. So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debtmoney, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein(vi) issue any securities other than the Trust Securities, or (vii) have any power to, or agree to any action by the Depositor that would, vary the investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of the Trust or of the Securityholders. The Property Trustee Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) D. In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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) to prepare for filing by the preparation, execution and filing Trust with the Commission of a registration statement on the appropriate form Form S-3 under the Securities Act or the preparation of offering documents 1933, as amended, in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto;
(ii) the determination of to determine the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) to prepare for filing by the negotiation Trust, and to execute on behalf of the terms ofTrust, an application to the New York Stock Exchange or any other national stock exchange or the NASDAQ National Market for listing upon notice of issuance of any Preferred Securities;
(iv) to prepare for filing by the Trust, and to execute on behalf of the execution and delivery ofTrust, with the Placement Agreement and Commission a registration statement on Form 8-A relating to the Purchase registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement providing for the sale of the Capital SecuritiesPreferred Securities and to execute, deliver and perform the Underwriting Agreement on behalf of the Trust; and
(ivvi) the taking of any other actions necessary necessary, incidental, appropriate or desirable convenient to carry out any of the foregoing activities.
(d) E. Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company ActAct of 1940, and will not be taxable as amended, or taxed as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures Debt Securities will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their its discretion to be necessary or desirable for such purposes, as long as such action does not materially and adversely affect in any material respect the interests of the Holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (bparagraph_(b) of this Section and in accordance with the following provisions (i), (iiprovisions_(i) and (iiiand_(ii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5paragraph_(b),_(c) or_(d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(iiSection_2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (i) acquire i)_acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sellii)_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) take iii)_take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur iv)_incur any indebtedness for borrowed money or issue any other debt, or (v) take v)_take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon the American Stock Exchange or such other securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by cause the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establish and maintain the Payment Account;
(B) receive, take title to and exercise all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receive and collection of collect interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distribute amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of send notices of default and other notices and information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distribute the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-wind up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.; and
(iiiJ) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange take any action incidental or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant convenient to the foregoingforegoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; provided, however, that nothing in this Section 2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-set- off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than fail or cease to qualify as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery on behalf of the Commission Issuer Trust, of a registration statement on and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon the American Stock Exchange or such other securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than classified as a grantor trust (and not as an association taxable as a corporation) for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i)) , (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation a Junior Subordinated Debenture Purchase Agreement, the Debenture a Common Securities Purchase Agreement and the Common Securities Purchase Agreementa Letter of Representations; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken betaken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the power and authority, and are hereby authorized and directed, to enter into on behalf of the Administrators shall act as followsTrust all transactions and agreements determined by the Administrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority and is hereby authorized and directed to act on behalf of the Trust with respect to the following matters:
(A) to execute, deliver, issue and sell the Trust Securities on behalf of the Trust in accordance with this Trust Agreement, and cause the Trust to execute, deliver, perform and comply with the Placement terms of the Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) to acquire the Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the -------- ------- Administrative Trustees shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Securityholders;
(C) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements, instruments and documents (including, without limitation, such certificates and cross-receipts as may be necessary in connection with the issuance and sale of the Trust Securities and the purchase of the Debentures) as may be necessary or desirable in connection with the purposes and function of the Trust;
(D) to assist in compliance with the registration of the Preferred Securities under the Securities ActAct of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act and to cause the Trust to take any action deemed in such Administrative Trustee's discretion to be necessary, advisable or convenient to comply with the Trust's obligations under the Trust Indenture Act;
(CE) to assist in the listing of the Capital Preferred Securities upon the NASDAQ Stock Market or such securities exchange or exchanges, if any, exchanges as shall be determined by the DepositorDepositor and, with if required, the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DF) execute to send notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Subordinated Debentures to the Securityholders in accordance with this Trust Agreement;
(EG) to appoint a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, to wind up the affairs of and liquidate the Trust and prepare, execute and file the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and in each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities or to enable the Trust to effect the purposes for which the Trust was created;
(J) to execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HK) to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine in their discretion is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event the taking of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) acting as Paying Agent and/or Securities Registrar to the extent appointed as such hereunder and executing and delivering letters, documents or instruments with the Clearing Agency relating to the Preferred Securities; providedincluding, howeverwithout limitation, that nothing the Certificate Depository Agreement; and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 2.07(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trust shall not, the Trustees nor shall not and the Administrators Administrative Trustees shall cause the Trust not to (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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that that, to such Trustee's actual knowledge, would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right right, power, authority and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 authorized, ratified and confirmed in all respects):
(i) the preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital SecuritiesPreferred Securities and the Subordinated Debentures, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of Subordinated Debentures and to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securitiesstates;
(iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to the NASDAQ Stock Market or a national stock exchange or other organizations for listing upon notice of issuance of any Preferred Securities (or, if applicable, the Subordinated Debentures) and to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notifications and documents as may be necessary from time to time;
(iv) if required, the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities (or, if applicable, the Subordinated Debentures) under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(vi) the negotiation of the terms of, and execution of, the Original Trust Agreement, and the preparation of this Trust Agreement and the selection of the Trustees;
(vii) the execution, delivery and performance of the Certificate Depository Agreement and such other agreements and instruments as may be necessary or incidental to the purposes and functions of the Trust; and
(ivviii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than classified as a "grantor trust trust" and not as an association taxable as a corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, subject to Section 10.02, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust law or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders Securityholders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities and the execution and delivery of Trust Securities Certificates representing such Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture ActAct and the Xxxxxxxx-Xxxxx Act of 2002 (and any regulations relating thereto), including, without limitation, the execution of any documents, reports or certifications required thereunder from time to time;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges or upon the NASDAQ National Market ("NASDAQ") as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Capital Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Capital Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges, or upon NASDAQ, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (S&t Bancorp Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Purchase Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as unless otherwise determined by the Depositor, any registration statement, if any, under Property Trustee or Holders of at least a Majority in Liquidation Amount of the Capital Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture a Junior Subordinated Debentures Purchase Agreement and the a Common Securities Purchase Agreement, both by and between the Issuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Purchase Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, statement under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Debentures Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Preferred Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Preferred Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (First Citizens Bancorporation Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchangesexchanges or upon the Nasdaq Stock Market, if any, Inc.'s National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq Stock Market, Inc.'s National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 207 and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act as followsAdministrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust SecuritiesSecurities and the compliance with the Underwriting Agreement in connection therewith;
(B) assist to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and such other agreements or documents as may be necessary or desirable in compliance connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Preferred Securities upon The Nasdaq National Market(SM) or such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required the compliance with the listing requirements of The Nasdaq National Market(SM) or if requested by the Depositor, applicable securities exchanges and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Securityholders in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist the appointment of a Paying Agent, Authenticating Agent and Securities Registrar in the filing accordance with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the this Trust Securities, including any amendments theretoAgreement;
(G) unless otherwise required by to the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to extent provided in this Trust Agreement, including without limitation, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities Purchase Agreementor to enable the Trust to effect the purposes for which the Trust was created; and
(HI) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) registering transfers of the Trust Securities in accordance with this Trust Agreement; provided, however, that nothing and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 207(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, ; (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or issue any other debt, ; or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, the Debentures, and the Guarantee, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or or, register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to The Nasdaq National Market(SM) or a national stock exchange or other organizations for listing upon notice of issuance of any Preferred Securities and to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notifications and documents as may be necessary from time to time;
(iv) the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will shall not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not shall be taxable other than classified as a "grantor trust trust" and not as an association taxable as a corporation for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will shall be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, subject to Section 1002, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust law or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Trustees determines in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon the American Stock Exchange or such other securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by cause the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establish and maintain the Payment Account;
(B) receive, take title to, and exercise all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receive and collection of collect interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distribute amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of send notices of default and other notices and information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distribute the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-wind up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.; and
(iiiJ) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange take any action incidental or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant convenient to the foregoingforegoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; provided, however, that nothing in this Section 2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off set- off, or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than fail or cease to qualify as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery on behalf of the Commission Issuer Trust, of a registration statement on and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon the American Stock Exchange or such other securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than classified as a grantor trust (and not as an association taxable as a corporation) for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators, and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust Trust, or this Trust Agreement, that the Property Trustee Trustee, the Administrators, and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators Administrative Trustees shall conduct the affairs of the Issuer Trust Success Capital in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), ) and (ii) and (iii), the Issuer Trustees and the Administrators Administrative Trustees shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrative Trustee shall have the power and authority to act on behalf of Success Capital with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the DepositorSuccess Bancshares, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer TrustSuccess Capital;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust Success Capital with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust Success Capital and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.that
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act have the authority to enter into all transactions and agreements determined by the Issuer Trustees or the Administrators to be appropriate in exercising the authority granted to the Issuer Trustees or the Administrators, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each AdministratorEach Administrator shall have the power, acting jointly or singly, shallduty and authority to act on behalf of the Trust with respect to the following matters in accordance with the terms of this Trust Agreement:
(A) comply with the Placement Agreement regarding the issuance and sale of the Preferred Securities and the Common Securities;
(B) to acquire the Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the Administrators shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders of the Trust Securities;
(BC) assist the execution of the Trust Securities on behalf of the Trust in compliance accordance with this Trust Agreement;
(D) the negotiation of the terms, and the causing of the execution and delivery, for and on behalf of the Trust, of the Underwriting Agreement providing for the sale of the Preferred Securities;
(E) to cause the Trust to enter into, and to execute, deliver, file and perform on behalf of the Trust, the DTC Letter of Representations and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust;
(F) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CG) assist assisting in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DH) execute assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Holders in accordance with this Trust Agreement;
(EI) execute the appointment of a Paying Agent, authenticating agent and deliver an application for a taxpayer identification number for the Issuer TrustSecurities Registrar in accordance with this Trust Agreement;
(FJ) assist in the filing with the Commission, at such time as unless otherwise determined by the Depositor, any registration statement, if any, under Holders of at least a majority in aggregate Liquidation Amount of the Preferred Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless or as otherwise required by the Delaware Statutory Trust Act or the Trust Indenture Act, execute the execution on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrators) of any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and;
(HK) take entering into such agreements and arrangements and taking any action incidental to the foregoing as is necessary or advisable to give effect to the terms of this Trust Agreement; and
(L) providing the Issuer Trustees with prompt written notice of the occurrence of a Special Event. The Administrators shall have only those ministerial duties set forth herein with respect to accomplishing the purposes of the Trust and shall not be trustees or, to the fullest extent permitted by law, fiduciaries with respect to the Trust or the Holders. Unless otherwise determined by the Administrators, any Administrator is authorized to execute on behalf of the Trust any documents which the Administrators have the power and authority to execute pursuant to this Trust Agreement.
(ii) The Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following mattersmatters in accordance with the terms of this Trust Agreement:
(A) the establishment and maintenance of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts from the Payment Account owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust AgreementProperty;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event a Trust Agreement Default, the taking of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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);
(J) engaging in such ministerial activities as shall be necessary, appropriate, convenient or incidental to effect the repayment of the Preferred Securities and the Common Securities to the extent the Debentures mature or are redeemed; provided, however, that nothing and
(K) registering transfers of the Trust Securities in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in accordance with this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with have the listing requirements power and authority to act on behalf of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration Trust with respect to any of the Capital Securities under duties, liabilities, powers or authority of the Exchange ActAdministrators set forth in Section 2.7(a)(i)(H), if required or if (I) and (K) herein, but shall not have a duty to do any such act unless specifically requested to do so in writing by the Depositor, and the preparation and filing of all periodic and other reports and other documents shall then be fully protected in acting pursuant to such written request; and in the foregoing.
(b) So long as this Trust Agreement remains in effectevent of a conflict between the action of the Administrators and the action of the Property Trustee, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf action of the Issuer Trust) Property Trustee shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided hereinprevail. The Property Trustee shall defend all claims not transfer or assign its rights, title and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse interest in and to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Trust, the following (and any actions taken by the Depositor in furtherance of the following prior Debentures to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act Administrators or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
Delaware Trustee (ii) if the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, Property Trustee does not also act as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; andDelaware Trustee).
(iv) Except as otherwise required by the taking of Delaware Statutory Trust Act, the Delaware Trustee shall not be entitled to exercise any other actions necessary or desirable to carry out powers, nor shall the Delaware Trustee have any of the foregoing activities.
(d) Notwithstanding anything herein to the contraryduties and responsibilities, the Administrators and of the Property Trustee are authorized and directed to conduct or the affairs Administrators set forth herein. The Delaware Trustee shall be one of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness trustees of the Depositor Trust for United States Federal income tax purposes. In this connection, the Property Trustee sole and limited purpose of fulfilling the Holders requirements of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.3807(a)
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees Sponsor is hereby authorized and the Administrators shall conduct the affairs directed, as an agent on behalf of the Issuer Trust Trust, to engage in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as followsactivities:
(i) each Administrator, acting jointly or singly, shall:
(A) comply to prepare and file with the Placement Agreement regarding the issuance Commission and sale execute, in each case on behalf of the Trust Securities;
Trust, (Ba) assist in compliance with any registration statement from time to time on Form S-1 or any applicable form at such time, as applicable (a “1933 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, including any preliminary prospectus, prospectus, prospectus supplement, free writing prospectus or pricing supplement relating thereto, relating to the registration of any Shares under the Securities Act, applicable state securities or blue sky laws(b) any registration statement filed, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchangesfrom time to time, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DRule 462(b) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to (the Trust Securities“462(b) Registration Statement” and, together with the 1933 Act Registration Statement, the “Registration Statements”), including any amendments thereto, relating to the registration of any Shares under the Securities Act and (c) as applicable, a registration statement on Form 8-A (a “1934 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, relating to the registration of any Shares under Section 12(b) or (g) of the Exchange Act;
(Gii) unless otherwise required by to prepare and file with the Trust Indenture ActNew York Stock Exchange and/or any other securities exchange and execute, in each case on behalf of the Trust, a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Shares to be listed or quoted on the New York Stock Exchange and/or any other securities exchange;
(iii) to prepare and file and execute, in each case on behalf of the Trust, such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers, applications, filings and other documents as shall be necessary or desirable to register the Shares under the securities or “blue sky” laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iv) to select underwriters or other purchasing or placement agents relating to the public offering or any issuance of any Shares pursuant to any Registration Statements;
(v) to negotiate the terms and conditions of, and execute on behalf of the Issuer Trust Trust, any documents that underwriting agreements or other purchase or placement agreements or other agreements relating to the Administrators have the power to execute pursuant to this Trust Agreementpublic or private offering of any Shares in exchange for Sponsor Interests, including including, without limitation, agreements relating to the Debenture Purchase Agreement registration of such Shares;
(vi) to execute and deliver, in each case on behalf of the Common Trust, such certifications or reports required by the Xxxxxxxx-Xxxxx Act of 2002 from time to time as may be necessary or proper to the conduct of the business of the Trust;
(vii) to pay any filing, application or other fees associated with any of the foregoing actions, including those to the Commission, the National Association of Securities Purchase AgreementDealers, any securities exchange, any agents or any other Person;
(viii) to select a transfer agent, including the Transfer Agent, and negotiate the terms and conditions of, and execute on behalf of the Trust, a transfer agent agreement; and
(Hix) take to select a custodian as holder of any action incidental to the foregoing as necessary or advisable to give effect to Trust Property and negotiate the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act conditions of, and execute on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment AccountTrust, a custodian agreement;
(Bx) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with negotiate 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorconditions of, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting execute on behalf of the Issuer Trust) shall not undertake any business, activity a depositary share agreement with a nationally recognized bank with combined capital and surplus of $50 million or transaction except as expressly provided herein or contemplated hereby. In particular, neither more for the Issuer Trustees nor purpose of establishing a depositary share program for the Administrators shall (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 Shares of the Trust Property or interests therein, including (the “Depositary Agreement”) and to Holders, except engage such nationally recognized bank as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.agent with respect thereto;
(cxi) In connection with to negotiate the issue terms and sale of the Capital Securitiesconditions of, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect execute on behalf of the Issuer Trust, the following (such agreements, documents 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trustcertificates, and to do such other acts and things as the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents Sponsor may deem to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with (w) give effect to any of the applicable laws of any such States foregoing, (x) in connection with the offer and sale public offering or any future issuance of the Capital Securities;
Shares, (iiiy) carry out the negotiation purpose and intent of the Trust or (z) to comply or give effect to any terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale or provisions of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activitiesthis Agreement.
(db) Notwithstanding anything herein It is hereby acknowledged and agreed that in connection with any execution, filing or document referred to in clauses (i) — (ix) above, (A) any Regular Trustee or the contrarySponsor singly be, the Administrators and the Property Trustee are hereby is, authorized and directed to conduct the affairs on behalf of the Issuer Trust to file and execute such document on behalf of the Trust and to operate (B) the Issuer Trust so that the Issuer Trust will Delaware Trustee shall not be required or be deemed necessary to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness join in any such filing or action or execute on behalf of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized Trust any such document or to take any such action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities and the execution and delivery of Trust Securities Certificates representing such Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture ActAct and the Xxxxxxxx-Xxxxx Act of 2002 (and any regulations relating thereto), including, without limitation, the execution of any documents, reports or certifications required thereunder from time to time;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Capital Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Capital Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (M&t Bank Corp)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation a Junior Subordinated Debenture Purchase Agreement, the Debenture a Common Securities Purchase Agreement and the Common Securities Purchase Agreementa Letter of Representations; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply compliance with the provisions of this Trust Agreement and take the taking of any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken betaken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Equitable Resources Capital Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees Property Trustee and the Administrators Administrative Trustees shall act have the authority to enter into all transactions and agreements determined by the Property Trustee and Administrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to such Issuer Trustees, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including the following:
(i) As among the Issuer Trustees, each AdministratorAdministrative Trustee, acting jointly individually or singlyjointly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment issuance and sale of the Trust Securities;
(B) causing the Issuer Trust to enter into, and to execute, deliver and perform on behalf of the Issuer Trust, such agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
(C) causing the Trust to assist in the qualifications of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in compliance with the duties and obligations of the Issuer Trust under the Securities Act and applicable state securities or blue sky laws and the Trust Indenture Act;
(E) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement (which consent shall not be unreasonably withheld);
(G) executing the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(H) executing and delivering closing certificates, if any, pursuant to the Purchase Agreement and application for a taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or Holders of at least a Majority in Liquidation Amount of the Capital Securities or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, executing on behalf of the Issuer Trust (either acting alone or together with any other Administrative Trustee) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and
(J) taking any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) receiving the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of collecting interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution distributing through any Paying Agent of amounts owed distributable to the Holders in respect of the Trust Securities;
(E) the exercise of exercising all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distributing the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of liquidating the Issuer Trust and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions ) taking of this Trust Agreement and take 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 to 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.;
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators Trustees, acting in their capacity as such, 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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with taking of any action necessary or desirable to sell the Commission Capital Securities in a transaction or a series of a transactions exempt from the registration statement on the appropriate form under requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States, or other jurisdictions, if any, in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital SecuritiesAgreement; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property each Administrative Trustee and the Holders Holder of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such Administrative Trustee or Holder of the Property Trustee and Holders of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (HSB Group Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act have the authority to enter into all transactions and agreements determined by the Issuer Trustees or the Administrators to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees or the Administrators, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Issuer Trust to enter into, and to execute and deliver on behalf of the Issuer Trust, the Expense Agreement, the Certificate Depository Agreement, the Registration Rights Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
(C) assisting in compliance with the Registration Rights Agreement, including filings under the Securities ActAct of 1933, as amended (including by means of registration of the Capital Securities thereunder from time to time), applicable state securities or blue sky laws, and the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Securities Exchange ActAct of 1934, as amended, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute assisting in the designation of the Capital Securities for trading in the Private Offering, Resales and Trading through the Automatic Linkages (PORTAL) system;
(F) the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Holders in accordance with this Trust Agreement;
(EG) execute the consent to the appointment of a Paying Agent and deliver an Securities Registrar in accordance with this Trust Agreement which consent shall not be unreasonably withheld;
(H) execution of the Trust Securities in accordance with this Trust Agreement;
(I) execution and delivery of closing certificates pursuant to the Purchase Agreement and the application for a taxpayer identification number for the Issuer Trust;
(FJ) assist to the extent provided in this Trust Agreement, the filing winding up of the affairs of and liquidation of the Issuer Trust and the preparation of the certificate of cancellation with the Commission, at such time as Secretary of State of the State of Delaware;
(K) unless otherwise determined by the Depositor, any registration statement, if any, under Property Trustee or the holders of a majority of the Outstanding Capital Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless or Common Securities or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrators) any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HL) take the taking of any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
(ii) The As among the Issuer Trustees and the Administrators, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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); providedand
(J) any of the duties, howeverliabilities, that nothing powers or the authority of the Administrators set forth herein; and in this Section 2.8(a)(ii) shall require the event of a conflict between the action of the Administrators and the action of the Property Trustee, the action of the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingprevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall shall, at the sole cost and expense of the Issuer Trust, defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of an offering circular, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act including any amendment or the preparation of offering documents supplement thereto, in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Original Capital Securities;
(ii) the compliance by the Issuer Trust with the Registration Rights Agreement, including the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement or statements on the appropriate form in relation to the Capital Securities, including any amendments thereto pursuant to the Registration Rights Agreement;
(iii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection States;
(iv) if the Depositor shall desire, the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing, upon notice of issuance, of any Capital Securities; and the preparation for filing by the Issuer Trust with the offer Commission and sale the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Capital SecuritiesSecurities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(iiiv) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital SecuritiesSecurities and the Registration Rights Agreement; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company 1940 Act, and will not or to be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Administrators, the Property Trustee and the Holders Holder of a majority of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the each of any Administrator, Property Trustee and Holders the Holder of a majority of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII and in accordance with the following provisions (i), (iiA) and (iiiB), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators 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 without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the power, duty and authority to act as followson behalf of the Trust with respect to the following matters:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(Bii) assist without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, the Dealer Manager Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in compliance connection with the consummation hereof (such execution to be by the Administrative Trustees or any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account;
(v) the filing of an Issuer Tender Offer Statement on Schedule 13E-4 and any other tender offer statement required to be filed with the Securities Actand Exchange Commission and the conduct of the Exchange Offer as described therein and in the Dealer Manager Agreement;
(vi) the registration of the Preferred Securities under the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(Cvii) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Dviii) execute the Trust Securities on behalf appointment of the Issuer Trust a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(Eix) execute and deliver an application for a taxpayer identification number for registering transfers of the Issuer TrustTrust Securities in accordance with this Trust Agreement;
(Fx) assist in the filing with the Commission, at such time as unless otherwise determined by the Depositor, any registration statement, if any, under Depositor or the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless Property Trustee or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute and deliver on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(Hxi) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(Ixii) after an Event the taking of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect any action incidental to the Property Trustee), comply with foregoing as the provisions of this Trust Agreement and take any action Administrative Trustees may from time to give effect time determine is necessary or advisable to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided.
(B) As among the Trustees, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee shall have the power, duty and authority to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting act on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.following matters:
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by cause the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establish and maintain the Payment Account;
(B) receive, hold and exercise all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receive and collection of collect interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distribute amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of send notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distribute the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the windingwind-up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.; and
(iiiJ) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange take any action incidental or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant convenient to the foregoingforegoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; provided, however, that nothing in this Section 2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery, on behalf of the Commission Issuer Trust, of a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Trust, to:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Capital Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitationlimitation a Junior Subordinated Debenture Subscription Agreement, the Debenture Purchase a Common Securities Subscription Agreement, a Certificate Depositary Agreement and an Expense Agreement, all by and between the Common Securities Purchase AgreementIssuer Trust and the Depositor; and
(HG) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); and provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing with by the Commission Issuer Trust, and execution on behalf of the Issuer Trust, of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement,and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions not exempt from the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken betaken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities;
(iv) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly or singly, shall:
(A1) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B2) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C3) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D4) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E5) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F6) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, statement under the Securities Act relating to the Trust SecuritiesAct, including any amendments thereto;
(G7) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Debentures Purchase Agreement and the Common Securities Purchase Agreement and send notices (other than notices of default) and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders in accordance with this Trust Agreement; and
(H) 8) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A1) the establishment of the Payment Account;
(B2) the receipt of the Junior Subordinated Debentures;
(C3) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D4) the distribution distribution, through the Paying Agent, of amounts owed to the Holders in respect of the Trust Securities;
(E5) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated DebenturesDebentures (subject to the terms of this Trust Agreement);
(F6) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G7) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) 8) to the extent provided in this Trust Agreement, the winding-up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I9) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators the Property Trustee shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrators as set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Administrators of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Administrators, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Administrators, Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof. It is understood that (i) by performing its duties and obligations as are specifically set forth in this Trust Agreement, the Property Trustee shall be deemed to have complied with the provisions of the first sentence of this Section 2.7(d) and (ii) nothing in this Section 2.7(d) shall require the Property Trustee to take any actions other that those specifically required by this Trustee Agreement to be taken by it.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) C of this Section Section, and in accordance with the following provisions (i), (ii) paragraphs A and (iii)B, the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators 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 without limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly or jointly, shall have the exclusive power, duty and authority to act as followson behalf of the Trust with respect to the following matters:
(i) each Administrator, acting jointly or singly, shall:
(A) comply to acquire the Subordinated Debt Securities with the Placement Agreement regarding proceeds of the issuance sale of the Trust Securities; provided, however, the Administrative Trustees shall cause legal title to all of the Subordinated Debt Securities to be vested in, and sale the Subordinated Debt Securities to be held of record in the name of, the Property Trustee for the benefit of the Trust and Holders of the Trust Securities;
(Bii) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of ss. 316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions, and exchanges, and to issue relevant notices to Holders of the Trust Securities as to such actions and applicable record dates;
(iii) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 2.07(B)(v), the Property Trustee has the power to bring such Legal Action;
(iv) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services;
(v) to cause the Trust to comply with the Trust's obligations under the Trust Indenture Act;
(vi) to give the certificate to the Property Trustee required by ss. 314(a)(4) of the Trust Indenture Act, which certificate may be executed by any Administrative Trustee;
(vii) to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Trust Agreement;
(viii) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory Statutory Trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Trust Securities or to enable the Trust to effect the purposes for which the Trust has been created;
(ix) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust;
(x) to issue and sell the Trust Securities;
(xi) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the consummation hereof;
(xii) to assist in compliance with the registration of the Preferred Securities under the Securities ActAct of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(Cxiii) to assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Dxiv) execute to send notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Subordinated Debt Securities to the Securityholders in accordance with this Trust Agreement;
(Exv) execute to appoint a Paying Agent (subject to Section 5.09), authenticating agent and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Registrar in accordance with this Trust Agreement;
(Gxvi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to assist in, to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation termination of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(Ixvii) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action to give effect incidental to the terms of this Trust Agreement and foregoing as the Administrative Trustees may from time to time determine is necessary, appropriate, convenient or advisable to protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided.
B. As among the Trustees, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) engage in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Subordinated Debt Securities are redeemed or mature;
(ii) upon notice of distribution issued by the Administrative Trustees in accordance with the terms of this Trust Agreement, engage in such ministerial activities as shall be necessary or appropriate to effect promptly the distribution pursuant to terms of this Trust Agreement of Subordinated Debt Securities to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights, powers and privileges of a holder of the Subordinated Debt Securities under the Subordinated Indenture and, if an Event of Default occurs and is continuing, shall enforce for the benefit of, and subject to the rights of, the Holders of the Trust Securities, its rights as holder of the Subordinated Debt Securities under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement;
(v) take any action that is not otherwise Legal Action specifically required of the Property Trustee pursuant to the terms of this Trust Agreement which arises out of or in connection with an Event of Default or the Property Trustee's duties and obligations under this Trust Agreement, the Delaware Statutory Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the Payment Account;
(vii) the receipt of and holding of legal title to the Subordinated Debt Securities as described herein;
(viii) the collection of interest, principal and any other payments made in respect of the Subordinated Debt Securities in the Payment Account;
(ix) the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other information regarding the Trust Securities and the Subordinated Debt Securities to the Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement.
(iii) The Administrators shall comply with , the listing requirements winding up of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration affairs of and termination of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, Trust and the preparation preparation, execution and filing of all periodic and other reports and other documents pursuant the certificate of cancellation with the Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoingforegoing as the Property Trustee may from time to time determine is necessary, appropriate, convenient or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(b) C. So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debtmoney, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein(vi) issue any securities other than the Trust Securities, or (vii) have any power to, or agree to any action by the Depositor that would, vary the investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of the Trust or of the Securityholders. The Property Trustee Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) D. In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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) to prepare for filing by the preparation, execution and filing Trust with the Commission of a registration statement on the appropriate form Form S-3 under the Securities Act or the preparation of offering documents 1933, as amended, in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto;
(ii) the determination of to determine the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesStates;
(iii) to prepare for filing by the negotiation Trust, and to execute on behalf of the terms ofTrust, an application to the New York Stock Exchange or any other national stock exchange or the NASDAQ National Market for listing upon notice of issuance of any Preferred Securities;
(iv) to prepare for filing by the Trust, and to execute on behalf of the execution and delivery ofTrust, with the Placement Agreement and Commission a registration statement on Form 8-A relating to the Purchase registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement providing for the sale of the Capital SecuritiesPreferred Securities and to execute, deliver and perform the Underwriting Agreement on behalf of the Trust; and
(ivvi) the taking of any other actions necessary necessary, incidental, appropriate or desirable convenient to carry out any of the foregoing activities.
(d) E. Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company ActAct of 1940, and will not be taxable as amended, or taxed as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures Debt Securities will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their its discretion to be necessary or desirable for such purposes, as long as such action does not materially and adversely affect in any material respect the interests of the Holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in Section 2.06 and paragraph (b) of this Section Section, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the exclusive power, duty and the Administrators shall act as followsauthority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrator, acting jointly or singly, shall:
Administrative Trustee (Aand no other Trustee) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust, acting alone or jointly, with respect to the following matters:
(A) to issue and sell the Trust Securities, provided, however that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided, further, that there shall be no interests in the Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to simultaneous issuances of both Preferred Securities and Common Securities on the Closing Date and each Option Closing Date in accordance with the provisions of the Purchase Agreement and the Common Securities Purchase Agreement subject to the issuance of Trust Securities pursuant to Section 5.04, 5.05 or 5.11(b) and Successor Securities pursuant to Section 9.05;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Common Securities Purchase Agreement, the Certificate Depository Agreement and the Debenture Purchase Agreement;
(C) to perform, on behalf of the Trust, its obligations under the Purchase Agreement and the Registration Rights Agreement;
(D) to assist in the registration of the Preferred Securities under the Securities Act and under state securities or blue sky laws, and in the qualification of this Agreement as a trust indenture under the Trust Indenture Act;
(E) to appoint a Paying Agent, a Security Registrar and an authenticating agent in accordance with this Agreement;
(F) to the extent provided in this Agreement, to wind up the affairs of and liquidate the Trust and prepare, execute and file the certificate of cancellation with the Secretary of State of the State of Delaware;
(G) to execute and deliver letters, documents or instruments with the Clearing Agency relating to the Preferred Securities;
(H) to obtain a CUSIP number for the Preferred Securities;
(I) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, and redemptions and to issue relevant notices to the Holders of Preferred Securities and Holders of Common Securities as to such actions and applicable record dates;
(J) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust, unless pursuant to the terms of this Agreement, the Property Trustee has the exclusive power to take such action;
(K) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services;
(L) to give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Property Trustee, which certificate may be executed by any Administrative Trustee;
(M) to incur expenses that are necessary or incidental to carry out any of the purposes of the Trust;
(N) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(O) to take any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Agreement including, but not limited to:
(1) causing the Trust not to be deemed to be an "investment company" required to be registered under the 1940 Act;
(2) causing the Trust to be classified for United States federal income tax purposes as a grantor trust; and
(3) cooperating with the Depositor to ensure that the Debentures will be treated as indebtedness of the Depositor for United States federal income tax purposes; provided that such action does not adversely affect in any material respect the interests of Securityholders except as otherwise provided in Section 11.02(a); and
(P) to apply to have the Preferred Securities designated as eligible for trading in the National Association of Securities Dealers, Inc.'s PORTAL Market.
(ii) As among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust only with respect to the following matters:
(A) the establishment and maintenance of the Payment Account;
(B) the receipt of and taking legal title to the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to the Holders Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default default, other notices and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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 AgreementArticle 9, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as is necessary or advisable or as the Property Trustee), comply with the provisions of this Trust Agreement and take any action Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and the Indenture and protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(ivJ) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein act as Paying Agent and/or Security Registrar to the contrary, the Administrators and the Property Trustee are authorized and directed extent appointed as such hereunder. Subject to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connectionSection 2.07(a)(ii), the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests shall have none of the Holders duties, liabilities, powers or the authority of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Administrative Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this set forth in Section that results from a change in law or regulations or in the interpretation thereof2.07(a)(i).
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act have the authority to enter into all transactions and agreements determined by the Issuer Trustees or the Administrators to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees or the Administrators, as followsthe case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Issuer Trust to enter into, and to execute and deliver on behalf of the Issuer Trust, the Expense Agreement, the Certificate Depository Agreement, the Registration Rights Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
(C) assisting in compliance with the Registration Rights Agreement, including filings under the Securities ActAct of 1933, as amended (including by means of registration of the Capital Securities thereunder from time to time), applicable state securities or blue sky laws, and the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Securities Exchange ActAct of 1934, as amended, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute assisting in the designation of the Capital Securities for trading in the Private Offering, Resales and Trading through the Automatic Linkages (PORTAL) system;
(F) the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Holders in accordance with this Trust Agreement;
(EG) execute the consent to the appointment of a Paying Agent and deliver an Securities Registrar in accordance with this Trust Agreement which consent shall not be unreasonably withheld;
(H) execution of the Trust Securities in accordance with this Trust Agreement;
(I) execution and delivery of closing certificates pursuant to the Purchase Agreement and the application for a taxpayer identification number for the Issuer Trust;
(FJ) assist to the extent provided in this Trust Agreement, the filing winding up of the affairs of and liquidation of the Issuer Trust and the preparation of the certificate of cancellation with the Commission, at such time as Secretary of State of the State of Delaware;
(K) unless otherwise determined by the Depositor, any registration statement, if any, under Property Trustee or the holders of a majority of the Outstanding Capital Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless or Common Securities or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrators) any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HL) take the taking of any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
(ii) The As among the Issuer Trustees and the Administrators, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3c), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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); providedand
(J) any of the duties, howeverliabilities, that nothing powers or the authority of the Administrators set forth herein; and in this Section 2.8(a)(ii) shall require the event of a conflict between the action of the Administrators and the action of the Property Trustee, the action of the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingprevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall shall, at the sole cost and expense of the Issuer Trust, defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of an offering circular, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act including any amendment or the preparation of offering documents supplement thereto, in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Original Capital Securities;
(ii) the compliance by the Issuer Trust with the Registration Rights Agreement, including the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement or statements on the appropriate form in relation to the Capital Securities, including any amendments thereto pursuant to the Registration Rights Agreement;
(iii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection States;
(iv) if the Depositor shall desire, the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing, upon notice of issuance, of any Capital Securities; and the preparation for filing by the Issuer Trust with the offer Commission and sale the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Capital SecuritiesSecurities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(iiiv) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital SecuritiesSecurities and the Registration Rights Agreement; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company 1940 Act, and will not or to be classified as an association taxable as a corporation or as other than as a grantor trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Administrators, the Property Trustee and the Holders Holder of a majority of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of any Administrator, the Property Trustee and Holders the Holder of a majority of Common Securities determine determines in their its 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply assist in complying with the Placement Purchase Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in cause the filing with the CommissionIssuer Trust to enter into, at such time as determined by the Depositorand execute, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute deliver and perform on behalf of the Issuer Trust any documents that Trust, the Administrators have the power to execute pursuant to this Trust Registration Rights Agreement, including without limitationthe Certificate Depository Agreement, the Junior Subordinated Debenture Purchase Agreement and Agreement, the Common Securities Purchase Agreement; , and each other agreement, instrument and certificate (including, without limitation, such certificates and cross-receipts as may be required in connection with the issuance and sale of the Trust Securities and the purchase of the Junior Subordinated Debentures) as such Administrator deems necessary or incidental to the purposes and functions of the Issuer Trust, and
(HG) take any action incidental or convenient to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establish and maintain the Payment Account;
(B) receive, take title to, and exercise all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receive and collection of collect interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distribute amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of send notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(ED) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(GE) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein, (vi) invest any proceeds received by the Issuer Trust from holding the Junior Subordinated Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x) to issue any securities or other evidence of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital SecuritiesAgreement; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 207 and Article VIII, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Administrative Trustees shall have the power and authority, and are hereby authorized, to enter into all transactions and agreements determined by the Administrators shall act as followsAdministrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each AdministratorAdministrative Trustee, acting jointly singly or singlyjointly, shallshall have the power and authority, and is hereby authorized, to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and such other agreements or documents as may be necessary or desirable in compliance connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities Actunder the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Preferred Securities upon The Nasdaq National Market or such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required the compliance with the listing requirements of The Nasdaq National Market or if requested by the Depositor, applicable securities exchanges and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute the sending of notices (other than notices of default) and other information regarding the Trust Securities on behalf of and the Issuer Trust Debentures to the Securityholders in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist the appointment of a Paying Agent and Securities Registrar in the filing accordance with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the this Trust Securities, including any amendments theretoAgreement;
(G) unless otherwise required by to the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to extent provided in this Trust Agreement, including without limitation, the Debenture Purchase Agreement winding up of the affairs of and liquidation of the Trust and the Common preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities Purchase Agreementor to enable the Trust to effect the purposes for which the Trust was created; and
(HI) take the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) The As among the Trustees, the Property Trustee shall have the power and authority authority, and is hereby authorized, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders Securityholders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; andTrust;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder);
(J) registering transfers of the Trust Securities in accordance with this Trust Agreement; provided, however, that nothing and
(K) except as otherwise provided in this Section 2.8(a)(ii) shall require 207(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators 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 HoldersSecurityholders, except as expressly provided herein, ; (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or issue any other debt, ; or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, the Debentures, and the Guarantee, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that must which under the applicable laws of any such states may not be taken by or on behalf of the Issuer TrustTrust by the Depositor, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securitiesstates;
(iii) the negotiation preparation for filing by the Trust and execution on behalf of the terms of, Trust of an application to The Nasdaq National Market or a national stock exchange or other organizations for listing upon notice of issuance of any Preferred Securities and the execution to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notifications and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; anddocuments as may be necessary from time to time;
(iv) the taking of any other actions necessary or desirable to carry out any preparation for filing by the Trust with the Commission and the execution on behalf of the foregoing activities.
(d) Notwithstanding anything herein Trust of a registration statement on Form 8-A relating to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs registration of the Issuer Trust and to operate Preferred Securities under Section 12(b) or 12(g) of the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Exchange Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take including any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.amendments thereto;
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by cause the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establish and maintain the Payment Account;
(B) receive, take title to, and exercise all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receive and collection of collect interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distribute amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of send notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distribute the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the windingwind-up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.; and
(iiiJ) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange take any action incidental or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant convenient to the foregoingforegoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; provided, however, that nothing in this Section 2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery, on behalf of the Commission Issuer Trust, of a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in Section 2.6 and paragraph (b) of this Section Section, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the exclusive power, duty and the Administrators shall act as followsauthority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrator, acting jointly or singly, shallAdministrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance to issue and sale of sell the Trust Securities, provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided, further, that there shall be no interests in the Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date and any other date Preferred Securities and Common Securities are sold pursuant to the over-allotment option granted to the initial purchasers in the Purchase Agreement, subject to the issuance of Trust Securities pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Registration Rights Agreement, the Purchase Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or incidental to the purposes and function of the Trust;
(C) to assist in compliance with the registration of the Preferred Securities under the Securities ActAct of 1933, applicable as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(CD) to assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingforegoing (only to the extent that such listing or registration is requested by the Depositor);
(DE) execute the Trust Securities on behalf of the Issuer Trust to appoint a Paying Agent, a Se- curities Registrar and an authenticating agent in accordance with this Trust Agreement;
(EF) to the extent provided in this Trust Agreement, to wind up the affairs of and liquidate the Trust and prepare, execute and deliver an application for a taxpayer identification number for file the Issuer Trust;
(F) assist in the filing certificate of cancellation with the Commission, at such time as determined by Secretary of State of the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments theretoState of Delaware;
(G) unless otherwise determined by the Depositor, the Property Trustee or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Issuer Trust (either acting alone or together with any other Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) to take any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company required to be registered under the 1940 Act;
(ii) causing the Trust to be classified for United States Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Depositor to ensure that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes; provided that such action does not adversely affect in any material respect the interests of Securityholders except as otherwise provided in Section 10.2(a).
(ii) The As among the Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to the Holders Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default default, other notices and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof Securityholders 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2)Default, (3), (4), or (5) the taking of the definition of such term if such Event of Default is by or with respect any action incidental to the foregoing as the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided, however, that nothing in ;
(J) subject to this Section 2.8(a)(ii) shall require 2.7(a)(ii), the Property Trustee to take any action that is not otherwise required shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in this Trust Agreement.Section 2.7(a)(i); and
(iiiK) The Administrators shall comply with the listing requirements of the Capital to act as Paying Agent and/or Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant Registrar to the foregoingextent appointed as such hereunder.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trust shall not, and the Trustees nor shall not and shall cause the Administrators shall Trust not to (i) invest any proceeds received by the Trust from holding the Debentures (rather, the Trustees shall distribute all such proceeds to the Securityholders pursuant to the terms of this Trust Agreement and the Trust Securities), 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 HoldersSecurityholders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) make any loans or incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) possess any power or otherwise act in such a way as to vary the Trust assets or the terms of the Trust Securities in any way whatsoever except as expressly provided hereinpermitted by the terms of this Trust Agreement, or (vii) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Property Trustee Adminis- trative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders Securityholders in their capacity as HoldersSecurityholders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Trust, with the following actions (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) to file by the preparation, execution and filing Trust with the Commission and to execute on behalf of the Trust a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto;
(ii) to determine the determination of the states States and foreign jurisdictions in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of to do any and all such acts, other than actions that which must be taken by or on behalf of the Issuer Trust, and advise the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation prepare for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securitiesforeign jurisdictions;
(iii) to the negotiation extent necessary, to prepare for filing by the Trust with the Commission and to execute on behalf of the terms ofTrust a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, and as amended, including any amendments thereto (it being understood that neither the execution and delivery ofTrust nor the Depositor has any obligation under the Indenture, the Placement Agreement and the Purchase Agreement providing for or the sale Trust Agreement to register any Trust Securities under the Securities Exchange Act of the Capital Securities; and1934, as amended or to list any Trust Securities on any securities exchange);
(iv) the taking of any other actions necessary or desirable incidental to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company 1940 Act, and will not be taxable other than or taxed as a grantor trust corporation for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Property Trustee Depositor and Holders of Common Securities determine the Administrative Trustees determines in their discretion to be necessary or desirable for such purposes, as so long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Preferred Securities except as otherwise provided in Section that results from a change in law or regulations or in the interpretation thereof10.2(a).
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust AgreementDeclaration of Trust. Subject to the limitations set forth in Section 2.6 and paragraph (b) of this Section Section, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the exclusive power, duty and the Administrators shall act as followsauthority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrator, acting jointly or singly, shallAdministrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance to issue and sale of sell the Trust Securities, provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided, further, that there shall be no interests in the Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date, subject to the issuance of Trust Securities pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Underwriting Agreement, the Remarketing Agreement and the Certificate Depositary Agreement and such other agreements as may be necessary or incidental to the purposes and function of the Trust;
(C) to assist in compliance with the registration of the Preferred Securities under the Securities Act of 1933, as amended (the "Securities Act"), applicable and under state securities or blue sky laws, and the qualification of this Declaration of Trust as a trust indenture under the Trust Indenture Act;
(CD) to assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Securities Exchange ActAct of 1934, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
foregoing (D) execute only to the Trust Securities on behalf of extent that such listing or registration is requested by the Issuer Trust in accordance with this Trust AgreementDepositor);
(E) execute to appoint a Paying Agent, a Securities Registrar and deliver an application for a taxpayer identification number for the Issuer authenticating agent in accordance with this Declaration of Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 AgreementDeclaration of Trust, the winding-to wind up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware;
(G) unless otherwise requested of the Depositor, the Property Trustee or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Trust (either acting alone or together with any other Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Declaration of Trust; and
(IH) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action incidental to the foregoing as the Trustees 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate Declaration of Trust or this Trust Agreementincluding, that the Property Trustee and Holders of Common Securities determine in their discretion to be necessary or desirable for such purposes, as long as such action does but not adversely affect in any material respect the interests of the Holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.limited to:
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist execution of the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon the Nasdaq National Market or such other interdealer quotation system or securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by cause the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establish and maintain the Payment Account;
(B) receive, take title to and exercise all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receive and collection of collect interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distribute amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of send notices of default and other notices and information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distribute the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-wind up of the affairs of and liquidation of liquidate the Issuer Trust and the preparationprepare, execution execute and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.; and
(iiiJ) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange take any action incidental or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant convenient to the foregoingforegoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; provided, however, that nothing in this Section 2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than fail or cease to qualify as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery on behalf of the Commission Issuer Trust, of a registration statement on and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon the Nasdaq National Market or such other interdealer quotation system or securities exchange or exchanges as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than classified as a grantor trust (and not as an association taxable as a corporation) for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities and the execution and delivery of Trust Securities Certificates representing such Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture ActAct and the Xxxxxxxx-Xxxxx Act of 2002 (and any regulations relating thereto), including, without limitation, the execution of any documents, reports or certifications required thereunder from time to time;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges or upon the NASDAQ National Market (“NASDAQ”) as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Capital Securities, including any amendments thereto;
(G) unless otherwise required by thereto and the Trust Indenture Act, execute on behalf taking of any action necessary or desirable to sell the Capital Securities in a transaction or series of transactions subject to the registration requirements of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementAct; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on the appropriate form under the Securities Act or the preparation of offering documents statement, and a prospectus in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Capital Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Capital Securities upon such securities exchange or exchanges, or upon NASDAQ, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (S&t Bancorp Inc)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section Section, and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators shall act as followsIssuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including the following:
(i) As among the Issuer Trustees, the Administrative Trustees, and each Administratorof them, acting jointly or singly, shallshall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist to cause the Issuer Trust to perform on behalf of the Issuer Trust the Underwriting Agreement and to cause the Issuer Trust to enter into, and to execute, deliver and perform on behalf of the Issuer Trust the Certificate Depository Agreement and such other agreements as may be necessary or desirable in compliance connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Preferred Securities Act, applicable under the Securities Act and under state securities or blue sky laws, and the qualification of this Trust Agreement under the Trust Indenture Act;
(CD) assist assisting in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or the Nasdaq National Market or any other automated quotation system as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and with the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DE) execute assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Issuer Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(H) execution of the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(EI) execute execution and deliver an delivery of closing certificates, if any, pursuant to the Underwriting Agreement and application for a taxpayer identification number for the Issuer Trust;
(FJ) assist in the filing with the Commission, at such time as unless otherwise determined by the Sponsor, the Depositor, any registration statementthe Property Trustee, if any, under or the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless Administrative Trustees or as otherwise required by the Delaware Statutory Trust Act, the Trust Indenture ActAct or other applicable law, to execute on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement;
(K) execution and delivery on behalf of the Issuer Trust of due bills for amounts owed upon conversion, including without limitationredemption or repurchase of Trust Securities or with respect to distributions on Trust Securities, in each case in accordance with the Debenture Purchase Agreement terms of such Trust Securities and the Common Securities Purchase this Trust Agreement; and
(HL) take the taking of any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The As among the Issuer Trustees, the Property Trustee shall have the power power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b),(c), (3), (4), d) or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with ) the provisions taking of this Trust Agreement and take 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); provided, however, that nothing and
(J) except as otherwise provided in this Section 2.8(a)(ii) shall require 2.7(a)(ii), the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements have none of the Capital Securities upon such securities exchange duties, liabilities, powers or exchanges, if any, as shall be determined by the Depositor, the registration authority of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingAdministrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction transactions except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor (acting on behalf of the Administrators Issuer 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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debtdebt (except that the issuance of due bills for amounts owed upon conversion, redemption or repurchase of Trust Securities or with respect to distributions on Trust Securities shall be permitted), (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) invest any proceeds received by the Issuer Trust from holding the Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except as to the extent expressly provided hereinauthorized in this Trust Agreement or by the terms of the Trust Securities) or (x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities (except that the issuance of due bills for amounts owed upon conversion, redemption or repurchase of Trust Securities or with respect to distributions on Trust Securities shall be permitted). The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue issuance and sale of the Capital Preferred Securities, the Depositor Sponsor shall have the right and and, if the Sponsor shall desire that the actions be taken, the responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Trust, the following (and any actions taken by the Depositor Sponsor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation, execution preparation and filing by the Issuer Trust with the Commission of and the execution on behalf of the Issuer Trust of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect relation to the Capital Preferred Securities, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees Trust of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securitiesstates;
(iii) the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred Securities and filing with such exchange or self-regulatory organization such notification and documents as may be necessary from time to time to maintain such listing;
(iv) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and
(ivv) the taking of any other actions necessary or desirable to carry out carryout any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor Sponsor for United States Federal income tax purposes. In this connection, the Property Trustee Sponsor, the Depositor and the Holders of Common Securities Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities they determine in their 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 Capital Preferred Securities. In no event shall the Administrators Sponsor, the Depositor or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations regulation or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII and in accordance with the following provisions (i), (iiA) and (iiiB), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Administrators 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 without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the power, duty and authority to act as followson behalf of the Trust with respect to the following matters:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(Bii) assist without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, the Dealer Manager Agreement and such other agreements as may be necessary or desirable in compliance connection with the consummation hereof (such execution to be by the Administrative Trustees or any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account;
(v) the filing of an Issuer Tender Offer Statement on Schedule 13E-4 and any other tender offer statement required to be filed with the Securities Actand Exchange Commission and the conduct of the Exchange Offer as described therein and in the Dealer Manager Agreement;
(vi) the registration of the Preferred Securities under the Securities Act of 1933, applicable as amended, and under state securities or blue sky laws, and the Trust Indenture Act;the
(Cvii) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with Depositor and the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositoras amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Dviii) execute the Trust Securities on behalf appointment of the Issuer Trust a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(Eix) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders in respect registering transfers of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(Hx) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(Ixi) after an Event the taking of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect any action incidental to the Property Trustee), comply with foregoing as the provisions of this Trust Agreement and take any action Administrative Trustees may from time to give effect time determine is necessary or advisable to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); provided.
(B) As among the Trustees, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee shall have the power, duty and authority to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting act on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Trust, to 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):matters:
(i) the preparation, execution and filing with establishment of the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesPayment Account;
(ii) the determination receipt of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital SecuritiesDebentures;
(iii) the negotiation deposit of interest, principal and any other payments made in respect of the terms of, and Debentures in the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; andPayment Account;
(iv) the taking distribution of any other actions necessary or desirable amounts owed to carry out any the Securityholders in respect of the foregoing activities.
(d) Notwithstanding anything herein to Trust Securities in accordance with the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs terms of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that ;
(v) the Property Trustee sending of notices of default and Holders other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of Common Securities determine in their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect this Trust Agreement;
(vi) the interests distribution of the Holders Trust Property in accordance with the terms of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer this Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.Agreement;
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist the execution of the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by causing the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establishing and maintaining the Payment Account;
(B) receiving, taking title to, and exercising all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receiving and collection of collecting interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distributing amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) acting as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distributing the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of liquidating the Issuer Trust and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply complying with the provisions of this Trust Agreement and take taking any action to give effect to the terms of this Trust Agreement and protect protecting and conserve conserving the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder); and
(J) taking any action incidental or convenient 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; provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off off, or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery on behalf of the Commission Issuer Trust, of a registration statement on and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators, and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust Trust, or this Trust Agreement, that the Property Trustee Trustee, the Administrators, and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A1) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B2) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C3) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D4) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E5) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F6) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, statement under the Securities Act relating to the Trust SecuritiesAct, including any amendments thereto;
(G7) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Debentures Purchase Agreement and the Common Securities Purchase Agreement; and
(H) 8) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A1) the establishment of the Payment Account;
(B2) the receipt of the Junior Subordinated Debentures;
(C3) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D4) the distribution of amounts owed to the Holders in respect of the Trust Securities;
(E5) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F6) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G7) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) 8) to the extent provided in this Trust Agreement, the winding-up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I9) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist the execution of the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by causing the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental or convenient to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establishing and maintain the Payment Account;
(B) receiving, taking title to, and exercising all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receiving and collection of collecting interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distributing amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) acting as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distributing the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of liquidating the Issuer Trust and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply complying with the provisions of this Trust Agreement and take taking any action to give effect to the terms of this Trust Agreement and protect protecting and conserve conserving the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder); and
(J) taking any action incidental or convenient 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; provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off off, or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee Trustee, subject to Section 8.6, shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery on behalf of the Commission Issuer Trust, of a registration statement on and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary incidental or desirable convenient to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators, and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust Trust, or this Trust Agreement, that the Property Trustee Trustee, the Administrators, and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (American Safety Insurance Group LTD)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off off, or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators Administrative Trustees shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators Administrative Trustees shall act as follows:
(i) each AdministratorAdministrative Trustee, acting jointly or singly, shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Preferred Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Preferred Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators Administrative Trustees have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Administrative Trustees shall comply with the listing requirements of the Preferred Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Preferred Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, Each Administrator shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;; and
(FE) assist in the filing with the Commission, at such time as determined by the Depositor, any preparation of a registration statement, if any, under the Securities Act relating statement and a prospectus in relation to the Trust Preferred Securities, including any amendments thereto;thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act.
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(HF) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority to act on behalf of the Issuer Trust with respect to the following:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;; and
(FE) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments thereto;thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act.
(GF) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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-winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation by the Issuer Trust of, and the execution and filing with the Commission of delivery of, a registration statement on statement, and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states States in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities; and;
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities; and
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee Trustee, the Administrators and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Sun Capital Trust)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shall:
(A) comply with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, statement under the Securities Act relating to the Trust SecuritiesAct, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Trust any documents that the Administrators have the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Debentures Purchase Agreement and the Common Securities Purchase Agreement; and
(H) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2b), (3c), (4d), or (5e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators Property Trustee shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, exchanges as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for the United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 holders of the Outstanding Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Distribution Trustees and the Administrators shall conduct the affairs of the Issuer Distribution Trust in accordance with the terms of this Distribution Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Distribution Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Distribution Trust, to:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Distribution Trust;
(FB) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Distribution Trust any documents that the Administrators have the power to execute pursuant to this Distribution Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase Loan Agreement; and
(HC) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Distribution Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Distribution Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Distribution Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the disbursements of the proceeds from the Capital Contributions to the ANZ Borrower pursuant to the Loan Agreement and the receipt of the Junior Subordinated DebenturesNotes;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures Notes and the deposit of such amounts in the Payment Account;
(D) the distribution of amounts owed Income Entitlements to the Holders U.K. Company or the ANZ Australian Affiliate in respect accordance with the terms of the this Distribution Trust SecuritiesAgreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities Notes to the holder of the Common Securities, the ANZ Australian Affiliate and the Junior Subordinated Debentures to the Holders thereof U.K. Company in accordance with this Distribution Trust Agreement;
(GF) the distribution of the Trust Property in accordance with the terms of this Distribution Trust Agreement;
(HG) to the extent provided in this Distribution Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Distribution Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(IH) after an Exchange Event of Default (other than under paragraph as defined in the Issuing Trust Agreement) (2), (3), (4), or (5) of the definition of unless such term if such Exchange Event of Default is caused by or with respect to the Property Trustee), comply compliance with the provisions of this Distribution Trust Agreement and take the taking of any action to give effect to the terms of this Distribution Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders (without consideration of U.K. Company, the effect of any such action on any particular Holder)ANZ Australian Affiliate and the Depositor; provided, however, that nothing in this Section 2.8(a)(ii2.05(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in by this Distribution Trust Agreement.
(iii) The Administrators shall comply with the listing requirements Each Distribution Trustee, acting singly or jointly, is authorized, on behalf of the Capital Securities upon such securities exchange or exchangesDistribution Trust, if any, to elect to treat the Distribution Trust as shall an entity that will be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingdisregarded as an entity separate from its owner for United States Federal income tax purposes.
(b) So long as this Distribution Trust Agreement remains in effect, the Issuer Distribution Trust (or the Issuer Distribution Trustees or Administrators acting on behalf of the Issuer Distribution Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Distribution Trustees nor the Administrators shall shall
(i) acquire any investments or engage in any activities not expressly authorized by this Distribution 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 Holdersthe U.K. Company, except as expressly provided herein, in the Loan Agreement or in the Notes, (iii) take any action that would reasonably be expected to cause the Issuer Distribution Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Distribution Trust, the following (and any actions taken by U.K. Company, 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act ANZ Australian Affiliate or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activitiesDepositor.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Distribution Trust Agreement (Anz Exchangeable Preferred Trust)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section 2.7 and in accordance with the following provisions (i), (ii) and (iiiii), the Issuer Trustees and the Administrators shall act as follows:
(i) each Administrator, acting jointly or singly, shallEach Administrator shall have the power and authority and is hereby authorized and directed to act on behalf of the Issuer Trust with respect to the following:
(A) comply the compliance with the Placement Underwriting Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in the compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist the execution of the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Capital Preferred Securities upon such securities exchange or exchanges, if any, exchanges or upon the Nasdaq National Market as shall be determined by the Depositor, with the registration of the Capital Preferred Securities under the Exchange Act, if required or if requested by the Depositorrequired, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an the application for a taxpayer identification number for the Issuer Trust;
(F) assist the preparation of a registration statement and a prospectus in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating relation to the Trust Preferred Securities, including any amendments theretothereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(G) unless otherwise required by causing the Issuer Trust Indenture Actto enter into, execute and execute, deliver and perform on behalf of the Issuer Trust any all agreements, instruments, certificates or other documents that as such Administrator deems necessary or incidental to the Administrators have purposes and functions of the power to execute pursuant to this Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase AgreementIssuer Trust; and
(H) take any action incidental to the foregoing as the Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority authority, and is hereby authorized and directed, to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of establishing and maintaining the Payment Account;
(B) receiving and exercising all of the receipt rights, powers and privileges of the holder of the Junior Subordinated Debentures;
(C) the receipt receiving and collection of collecting interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of distributing amounts owed to the Holders in respect of the Trust SecuritiesSecurities in accordance with the terms of this Trust Agreement;
(E) acting as Paying Agent and/or Securities Registrar to the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debenturesextent appointed as such hereunder;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of distributing the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding-winding up of the affairs of and liquidation of liquidating the Issuer Trust and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(I) after an Event of Default (other than under paragraph (2b), (3), (4), c) or (5d) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply complying with the provisions of this Trust Agreement and take taking any action to give effect to the terms of this Trust Agreement and protect protecting and conserve conserving the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder); and
(J) taking any action incidental or convenient 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; provided, however, that nothing in this Section 2.8(a)(ii2.7(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators (in each case acting on behalf of the Issuer Trust) shall (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off setoff, or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to become taxable other than as a grantor trust corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Preferred Securities, the Depositor shall have the right power and responsibility authority to assist the Issuer Trust with respect to, or effect on behalf of the Issuer 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 preparationpreparation and filing by the Issuer Trust with the Commission, and the execution and filing with delivery on behalf of the Commission Issuer Trust, of a registration statement on and a prospectus in relation to the appropriate form under Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or a series of transactions subject to the registration requirements of the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital SecuritiesAct;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States states in connection with the offer and sale of the Capital Preferred Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Underwriting Agreement providing for the sale of the Capital Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the Commission and the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred Securities upon such securities exchange or exchanges, or upon the Nasdaq National Market, as shall be determined by the Depositor, the registration of the Preferred Securities under the Exchange Act, if required, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and
(ivvi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “"investment company” " required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust corporation for the United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Property Trustee Trustee, the Administrators, and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust Trust, or this Trust Agreement, that the Property Trustee Trustee, the Administrators, and Holders of Common Securities determine in their 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 Capital Preferred Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (Provident Trust Ii)
Authorization to Enter into Certain Transactions. (a) The Issuer Trustees Sponsor is hereby authorized and the Administrators shall conduct the affairs directed, as an agent on behalf of the Issuer Trust Trust, to engage in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Trustees and the Administrators shall act as followsactivities:
(i) each Administrator, acting jointly or singly, shall:
(A) comply to prepare and file with the Placement Agreement regarding the issuance Commission and sale execute, in each case on behalf of the Trust Securities;
Trust, (Ba) assist in compliance with any registration statement from time to time on Form S-1 or any applicable form at such time, as applicable (a “1933 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, including any preliminary prospectus, prospectus, prospectus supplement, free writing prospectus or pricing supplement relating thereto, relating to the registration of any Shares under the Securities Act, applicable state securities or blue sky laws(b) any registration statement filed, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchangesfrom time to time, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(DRule 462(b) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Trust;
(F) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to (the Trust Securities“462(b) Registration Statement” and, together with the 1933 Act Registration Statement, the “Registration Statements”), including any amendments thereto, relating to the registration of any Shares under the Securities Act and (c) as applicable, a registration statement on Form 8-A (a “1934 Act Registration Statement”), including any pre-effective or post-effective amendments thereto, relating to the registration of any Shares under Section 12(b) or (g) of the Exchange Act;
(Gii) unless otherwise required by to prepare and file with the Trust Indenture ActNasdaq National Market and/or any other securities exchange and execute, in each case on behalf of the Trust, a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Shares to be listed or quoted on the Nasdaq National Market and/or any other securities exchange;
(iii) to prepare and file and execute, in each case on behalf of the Trust, such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers, applications, filings and other documents as shall be necessary or desirable to register the Shares under the securities or “blue sky” laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iv) to select underwriters or other purchasing or placement agents relating to the public offering or any issuance of any Shares pursuant to any Registration Statements;
(v) to negotiate the terms and conditions of, and execute on behalf of the Issuer Trust Trust, any documents that underwriting agreements or other purchase or placement agreements or other agreements relating to the Administrators have the power to execute pursuant to this Trust Agreementpublic or private offering of any Shares in exchange for Sponsor Interests, including including, without limitation, agreements relating to the Debenture Purchase Agreement registration of such Shares;
(vi) to execute and deliver, in each case on behalf of the Common Trust, such certifications or reports required by the Sxxxxxxx-Xxxxx Act of 2002 from time to time as may be necessary or proper to the conduct of the business of the Trust;
(vii) to pay any filing, application or other fees associated with any of the foregoing actions, including those to the Commission, the National Association of Securities Purchase AgreementDealers, any securities exchange, any agents or any other Person;
(viii) to select a transfer agent, including the Transfer Agent, and negotiate the terms and conditions of, and execute on behalf of the Trust, a transfer agent agreement; and
(Hix) take to select a custodian as holder of any action incidental to the foregoing as necessary or advisable to give effect to Trust Property and negotiate the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority to act conditions of, and execute on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment AccountTrust, a custodian agreement;
(Bx) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures in the Payment Account;
(D) the distribution of amounts owed 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 Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Holders thereof in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with negotiate 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 Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph (2), (3), (4), or (5) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), comply with the provisions of this Trust Agreement and take any action 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); provided, however, that nothing in this Section 2.8(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in this Trust Agreement.
(iii) The Administrators shall comply with the listing requirements of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositorconditions of, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrators acting execute on behalf of the Issuer Trust) shall not undertake any business, activity a depositary share agreement with a nationally recognized bank with combined capital and surplus of $50 million or transaction except as expressly provided herein or contemplated hereby. In particular, neither more for the Issuer Trustees nor purpose of
establishing a depositary share program for the Administrators shall (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 Shares of the Trust Property or interests therein, including (the “Depositary Agreement”) and to Holders, except engage such nationally recognized bank as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable other than as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.agent with respect thereto;
(cxi) In connection with to negotiate the issue terms and sale of the Capital Securitiesconditions of, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect execute on behalf of the Issuer Trust, the following (such agreements, documents 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trustcertificates, and to do such other acts and things as the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents Sponsor may deem to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with (w) give effect to any of the applicable laws of any such States foregoing, (x) in connection with the offer and sale public offering or any future issuance of the Capital Securities;
Shares, (iiiy) carry out the negotiation purpose and intent of the Trust or (z) to comply or give effect to any terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale or provisions of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activitiesthis Agreement.
(db) Notwithstanding anything herein It is hereby acknowledged and agreed that in connection with any execution, filing or document referred to in clauses (i) — (ix) above, (A) any Regular Trustee or the contrarySponsor singly be, the Administrators and the Property Trustee are hereby is, authorized and directed to conduct the affairs on behalf of the Issuer Trust to file and execute such document on behalf of the Trust and to operate (B) the Issuer Trust so that the Issuer Trust will Delaware Trustee shall not be required or be deemed necessary to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness join in any such filing or action or execute on behalf of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized Trust any such document or to take any such action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer Distribution Trustees and the Administrators shall conduct the affairs of the Issuer Distribution Trust in accordance with the terms of this Distribution Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i), (ii) and (iii), the Issuer Distribution Trustees and the Administrators shall act as follows:
(i) each Each Administrator, acting jointly singly or singlyjointly, shallis authorized, on behalf of the Distribution Trust, to:
(A) comply with the Placement Agreement regarding the issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act, applicable state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Capital Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer identification number for the Issuer Distribution Trust;
(FB) assist in the filing with the Commission, at such time as determined by the Depositor, any registration statement, if any, under the Securities Act relating to the Trust Securities, including any amendments thereto;
(G) unless otherwise required by the Trust Indenture Act, execute on behalf of the Issuer Distribution Trust any documents that the Administrators have the power to execute pursuant to this Distribution Trust Agreement, including without limitation, the Debenture Purchase Agreement and the Common Securities Purchase any Loan Agreement; and
(HC) take any action incidental to the foregoing as necessary or advisable to give effect to the terms of this Distribution Trust AgreementAgreement (and any actions taken in furtherance of the above prior to the date of this Distribution Trust Agreement by the Administrators are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on behalf of the Issuer Distribution Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the disbursements of the proceeds from the Capital Contributions to the USLLC or any NAB Borrower pursuant to the related Loan Agreement and the receipt of the Junior Subordinated DebenturesNotes;
(C) the receipt and collection of interest, principal and any other payments made in respect of the Junior Subordinated Debentures Notes and the deposit of such amounts in the Payment Account;
(D) the distribution of amounts owed Income Entitlements to the Holders U.K. Company or the Depositor in respect accordance with the terms of the this Distribution Trust SecuritiesAgreement;
(E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information regarding the Trust Notes to the holder of the Common Securities and the Junior Subordinated Debentures to the Holders thereof U.K. Company in accordance with this Distribution Trust Agreement;
(GF) the distribution of the Trust Property in accordance with the terms of this Distribution Trust Agreement;
(HG) to the extent provided in this Distribution Trust Agreement, the winding-winding up of the affairs of and liquidation of the Issuer Distribution Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(IH) after an Exchange Event of Default (other than under paragraph as defined in the Issuing Trust Agreement) (2), (3), (4), or (5) of the definition of unless such term if such Exchange Event of Default is caused by or with respect to the Property Trustee), comply compliance with the provisions of this Distribution Trust Agreement and take the taking of any action to give effect to the terms of this Distribution Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders (without consideration of U.K. Company and the effect of any such action on any particular Holder)Depositor; provided, however, that nothing in this Section 2.8(a)(ii2.05(a)(ii) shall require the Property Trustee to take any action that is not otherwise required in by this Distribution Trust Agreement.
(iii) The Administrators shall comply with the listing requirements Each Distribution Trustee, acting singly or jointly, is authorized, on behalf of the Capital Securities upon such securities exchange or exchangesDistribution Trust, if any, to elect to treat the Distribution Trust as shall an entity that will be determined by the Depositor, the registration of the Capital Securities under the Exchange Act, if required or if requested by the Depositor, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingdisregarded as an entity separate from its owner for United States Federal income tax purposes.
(b) So long as this Distribution Trust Agreement remains in effect, the Issuer Distribution Trust (or the Issuer Distribution Trustees or Administrators acting on behalf of the Issuer Distribution Trust) shall not undertake any business, activity activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Distribution Trustees nor the Administrators shall (i) acquire any investments or engage in any activities not expressly authorized by this Distribution 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 Holdersthe U.K. Company, except as expressly provided herein, in the Loan Agreement or in the Notes, (iii) take any action that would reasonably be expected to cause the Issuer Distribution Trust to become taxable other than as a grantor trust corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the Depositor shall have the right and responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Distribution 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 preparation, execution and filing with the Commission of a registration statement on the appropriate form under the Securities Act U.K. Company or the preparation of offering documents in reliance on one or more exemptions from registration under the Securities Act with respect to the Capital Securities;
(ii) the determination of the states in which to take appropriate action to qualify or register for sale or necessary to obtain any exemption from such qualification or registration of all or part of the Capital Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the offer and sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement Agreement and the Purchase Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the foregoing activitiesDepositor.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Property Trustee are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable other than as a grantor trust for United States Federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Property Trustee and the Holders of Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that the Property Trustee and Holders of Common Securities determine in their 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 Capital Securities. In no event shall the Administrators or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulations or in the interpretation thereof.
Appears in 1 contract
Samples: Distribution Trust Agreement (Nab Exchangeable Preferred Trust)
