Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following: (i) As among the Trustees, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters: (A) executing and delivering the Trust Securities on behalf of the Trust; (B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary; (C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act; (D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (E) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware; (F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and (G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder). (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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09); (B) receiving payment of the purchase price of the Trust Securities; (C) receiving and holding the Debentures; (D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account; (E) making Distributions and other payments to the Securityholders in respect of the Trust Securities; (F) exercising all of the rights, powers and privileges of a holder of the Debentures; (G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement; (H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware; (I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and (J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar). (b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders. (c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects): (i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto; (ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States; (iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities; (iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and (vi) taking any other actions necessary or desirable to carry out any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 7 contracts
Samples: Trust Agreement (Public Service Electric & Gas Co), Trust Agreement (Pse&g Capital Trust Iii), Trust Agreement (Public Service Electric & Gas Co)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, executing on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement; and
(H) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default. Except as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures (it being understood that the Trust and Trustees 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 4 contracts
Samples: Trust Agreement (JPMorgan Chase Capital XVI), Trust Agreement (JPMorgan Chase Capital XXII), Trust Agreement (JPMorgan Chase Capital XVI)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, executing on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement; and
(H) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default. Except as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures (it being understood that the Trust and Trustees 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 4 contracts
Samples: Trust Agreement (Susquehanna Capital IV), Trust Agreement (J P Morgan Chase & Co), Trust Agreement (J P Morgan Chase & Co)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of shall not cause the Trust shall not to (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a “grantor trust trust” for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 ActInvestment Company Act of 1940, or taxed as amended, and will be classified as a “grantor trust” and not as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 3 contracts
Samples: Trust Agreement (Lincoln National Corp), Trust Agreement (Lincoln National Corp), Trust Agreement (Lincoln National Corp)
Authorization to Enter into Certain Transactions. (a) The Issuer 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 SectionSection 2.7, and in accordance with the following provisions (i) and (ii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees Issuer Trustees, as the case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Each Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Issuer Trust to enter into, and executing, delivering to execute and performing deliver on behalf of the Issuer Trust, the Certificate Depository Expense Agreement and such other agreements as may be necessary or desirable in connection with or incidental to the purposes and function of the Issuer Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under applicable state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and Depositor, with the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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 consent to the appointment of a Paying Agent and 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;
(I) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Issuer Trust and preparing, executing the preparation and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FJ) sending notices unless otherwise required by applicable law, to execute on behalf of the Issuer Trust (either acting alone or assisting together with any or all of the Property Trustee in sending notices and other information regarding Administrative Trustees) any documents that the Trust Securities and Administrative Trustees have the Debentures power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder).
(ii) As among the Trustees, the 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 and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them the holding of such amounts in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts distributable to the Securityholders Holders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust, including distributing Issuer Trust and the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder); and
(J) registering transfers and exchanges any of the Preferred Securities duties, liabilities, powers or the authority of the Administrative Trustees set forth herein; and in accordance with this Trust Agreement (but only if at such time 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 shall be the Securities Registrar)prevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrative Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Issuer Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 SecurityholdersHolders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to fail be classified as an association taxable as a corporation or cease to qualify as other than 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Securityholders Holders in their capacity as SecurityholdersHolders.
(c) In connection with the issue and sale of the Preferred 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) preparing for the preparation and filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred 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) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Issuer Trust, and advising the Trustees advice to the Issuer Trust of actions they must take on behalf of the Issuer Trust, and preparing 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 StatesStates in connection with the sale of the Capital Securities;
(iii) preparing if the Depositor shall desire, the preparation for filing by the Issuer Trust and executing execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing listing, upon notice of issuance issuance, of any Preferred Capital Securities;
(iv) preparing the preparation for filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Capital Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(v) negotiating the preparation and execution of a Letter of Representations to the Depository Trust Company on behalf of the Issuer Trust; and
(vi) the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(vivii) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that (i) the Issuer Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed to be classified as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as other than a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Capital Securities. In no event shall the Administrative 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 regulation or interpretation thereof.
Appears in 3 contracts
Samples: Trust Agreement (Keycorp Capital V), Trust Agreement (Keycorp Capital V), Trust Agreement (Keycorp Capital V)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless as otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) subject to this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing to prepare for filing by the Trust with the Commission and executing to execute on behalf of the Trust a registration statement on Form S-3 or S-4 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising advise the Trustees of actions they must take on behalf of the Trust, and preparing prepare for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing to prepare for filing by the Trust and executing to execute on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing to prepare for filing by the Trust with the Commission and executing to execute on behalf of the Trust 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 amendedAct, including any amendments thereto;
(v) negotiating to negotiate the terms of, and executing execute and deliveringdeliver, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 3 contracts
Samples: Trust Agreement (Principal Financial Group Inc), Trust Agreement (Principal Financial Group Inc), Trust Agreement (Principal Financial Group Inc)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest interest, premium, if any, and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue incur any other debtobligations, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The Nasdaq National Stock Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 3 contracts
Samples: Trust Agreement (Public Service Enterprise Group Inc), Trust Agreement (Public Service Electric & Gas Co), Trust Agreement (Pseg Funding Trust Ii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing issuing and delivering selling the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating winding up the affairs of and liquidating the Trust and preparing, executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending (other than notices of defaults) and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 3 contracts
Samples: Trust Agreement (Usf&g Corp), Trust Agreement (Usf&g Corp), Trust Agreement (Usf&g Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration (including the execution of a registration statement on the appropriate form) of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;,
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement,
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;,
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 3 contracts
Samples: Trust Agreement (Bancfirst Corp /Ok/), Trust Agreement (BFC Capital Trust Ii), Trust Agreement (Bancfirst Corp /Ok/)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust AgreementDeclaration of Trust. 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 agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust AgreementDeclaration of Trust, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the Trust, the Certificate Depository Agreement Underwriting Agreement, the Letter of Representations and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amendedAct, and under state securities or blue sky laws, and qualifying the qualification of this Declaration of Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended1934 (the "Exchange Act"), and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance with this Declaration of Trust;
(H) to the extent provided in this Trust AgreementDeclaration of Trust, terminating the winding up of the affairs and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust AgreementDeclaration of Trust; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular SecurityholderSecurityholders).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust Junior Subordinated Debt Securities;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Junior Subordinated Debt Securities in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesJunior Subordinated Debt Securities;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(G) the distribution of the Trust AgreementProperty in accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Declaration of Trust, including distributing the winding up of the affairs of and liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than an Event of Default pursuant to paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement and 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); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.07(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or authority of the Administrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Declaration of Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction transactions except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or engage in any activities not authorized by this Trust AgreementDeclaration of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iii) intentionally take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" or as other than an association taxable as a corporation for United States Federal 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 Trust other than the Trust Securities, or (vi) 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 Declaration of Trust 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 Declaration of Trust 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 provided in this Declaration of Trust or by the terms of the Trust Securities, so long as any Junior Subordinated Debt Securities are held by the Property Trustee, (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 independent law firm 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, that the Trust will not be classified as a grantor trust or will be classified as an association taxable as a corporation for United States federal income tax purposes or that the Junior Subordinated Debt Securities will not be classified as indebtedness for such purposes. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue issuance and sale of the Preferred Trust Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Declaration of Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation by the Trust of a prospectus relating to the Trust Securities and the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Trust Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and doing the determination of any and all such acts, other than actions which that must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Trust Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(viv) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred SecuritiesTrust Securities and such other agreements as may be necessary or desirable in connection with the consummation of the transactions contemplated thereby, all in its capacity as Depositor and on behalf of the Trust; and
(viv) 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 each Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not (i) be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust or as other than an association taxable as a corporation for United States Federal federal income tax purposes and (iii) so that the Debentures Junior Subordinated Debt Securities will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and each of the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust AgreementDeclaration of Trust, that each of the Depositor and the each Administrative Trustee 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 Trust Securities.
Appears in 3 contracts
Samples: Declaration of Trust (Highlands Capital Trust I), Declaration of Trust (Southern Financial Capital Trust I), Declaration of Trust (Resource Capital Trust I)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection , Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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; 18 13
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreement, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;; and
(I) after an Event of Defaultexcept as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the 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 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 Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed 20 15 by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 3 contracts
Samples: Trust Agreement (Chase Capital Iii), Trust Agreement (Chase Capital Ix), Trust Agreement (Chase Capital Vi)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that that
(i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 3 contracts
Samples: Trust Agreement (Public Service Enterprise Group Inc), Trust Agreement (Public Service Enterprise Group Inc), Trust Agreement (Public Service Enterprise Group Inc)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the extent provided Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, terminating authenticating agent and liquidating Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) the winding up of the affairs of and liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Statutory Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(IH) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder);
(I) registering transfers of the Trust Securities in accordance with this Trust Agreement; and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of shall not cause the Trust shall not to (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a “grantor trust trust” for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 ActInvestment Company Act of 1940, or taxed as amended, and will be classified as a “grantor trust” and not as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Restated Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 3 contracts
Samples: Trust Agreement (Lincoln National Corp), Trust Agreement (Lincoln National Corp), Trust Agreement (Lincoln National Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise determined by the Depositor or assisting the Property Trustee in sending notices and other information regarding Administrative Trustees, or as otherwise required by the Delaware Statutory Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) subject to this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing to prepare for filing by the Trust with the Commission and executing to execute on behalf of the Trust a registration statement on Form S-3 or S-4 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising advise the Trustees of actions they must take on behalf of the Trust, and preparing prepare for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing to prepare for filing by the Trust and executing to execute on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing to prepare for filing by the Trust with the Commission and executing to execute on behalf of the Trust 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 amendedAct, including any amendments thereto;
(v) negotiating to negotiate the terms of, and executing execute and deliveringdeliver, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 3 contracts
Samples: Trust Agreement (Chubb Capital Trust Iii), Trust Agreement (Chubb Capital Trust Iii), Trust Agreement (Chubb Capital Trust Iii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, business activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 2 contracts
Samples: Trust Agreement (Liberty Financial Capital Trust Ii), Trust Agreement (Liberty Financial Capital Trust Ii)
Authorization to Enter into Certain Transactions. (a) The Issuer 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 SectionSection 2.7, and in accordance with the following provisions (i) and (ii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees Issuer Trustees, as the case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Each Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Issuer Trust to enter into, and executing, delivering to execute and performing deliver on behalf of the Issuer Trust, the Certificate Depository Expense Agreement and such other agreements as may be necessary or desirable in connection with or incidental to the purposes and function of the Issuer Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under applicable state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and Depositor, with the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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 consent to the appointment of a Paying Agent and 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;
(I) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Issuer Trust and preparing, executing the preparation and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FJ) sending notices unless otherwise required by applicable law, to execute on behalf of the Issuer Trust (either acting alone or assisting together with any or all of the Property Trustee in sending notices and other information regarding Administrative Trustees) any documents that the Trust Securities and Administrative Trustees have the Debentures power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder).
(ii) As among the Trustees, the 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 and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them the holding of such amounts in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts distributable to the Securityholders Holders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust, including distributing Issuer Trust and the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an a Trust Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Trust Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder); and
(J) registering transfers and exchanges any of the Preferred Securities duties, liabilities, powers or the authority of the Administrative Trustees set forth herein; and in accordance with this Trust Agreement (but only if at such time 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 shall be the Securities Registrar)prevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrative Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Issuer Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 SecurityholdersHolders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to fail be classified as an association taxable as a corporation or cease to qualify as other than 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Securityholders Holders in their capacity as SecurityholdersHolders.
(c) In connection with the issue and sale of the Preferred 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) preparing for the preparation and filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred 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) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Issuer Trust, and advising the Trustees advice to the Issuer Trust of actions they must take on behalf of the Issuer Trust, and preparing 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 StatesStates in connection with the sale of the Capital Securities;
(iii) preparing if the Depositor shall desire, the preparation for filing by the Issuer Trust and executing execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing listing, upon notice of issuance issuance, of any Preferred Capital Securities;
(iv) preparing the preparation for filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Capital Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(v) negotiating the preparation and execution of a Letter of Representations to the Depository Trust Company on behalf of the Issuer Trust; and
(vi) the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(vivii) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that (i) the Issuer Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed to be classified as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as other than a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Capital Securities. In no event shall the Administrative 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 regulation or interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (KeyCorp Capital VIII), Trust Agreement (KeyCorp Capital VIII)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the TrusteesEach Regular Trustee, the Administrative Trustee acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to assisting in the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary notices (other than notices of State of the State of Delaware;
(Fdefault) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures Notes to the Securityholders in accordance with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent in accordance with this Trust Agreement;
(G) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates pursuant to the Underwriting Agreement and application for a taxpayer identification number for the Trust;
(I) unless otherwise determined by the Depositor, the Property Trustee or the Holders of Preferred Securities representing more than 50% of the aggregate Liquidation Amount of the Outstanding Preferred Securities, 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 or all of the Regular Trustees) any documents that the Regular Trustees have the power to execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the The Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesNotes;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Notes in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesNotes;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Notes to the 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, terminating assisting in the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges any of the Preferred Securities duties, liabilities, powers or the authority of the Regular Trustees set forth in accordance with this Trust Agreement Section 2.7(a)(i)(E), (but only if at such time F) and (J); and in the event of a conflict between the actions of the Regular Trustees and those of the Property Trustee, the actions of the Property Trustee shall be the Securities Registrar)prevail.
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust he Trust) shall not (i) acquire any assets or investments (other than the Debentures)Notes, reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or (ii) engage in any activities not authorized by this Trust Agreement, (iiiii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iiiiv) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, (ivv) 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 Trust other than the Trust Securities, debt or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders; provided, however, that (x) all expenses relating to such defense shall be borne by the Depositor and (y) the Property Trustee shall be fully indemnified by the Depositor for all costs incurred in connection with such defense.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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, if required;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is authorized Trustees are authorized, and directed the Regular Trustees are directed, to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify be classified as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures Notes will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee Trustees 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 Preferred Securities.
Appears in 2 contracts
Samples: Subordinated Indenture (Edison International), Trust Agreement (Eix Trust Iii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debt Securities to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating Agreement the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trus- tees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement;
(J) the entering into of a Debt Security purchase agreement and Common Securities purchase agreement with the Depositor;
(K) the giving to the Depositor and the Property Trustee prompt written notice of the occurrence of an Investment Company Event; provided that the Administrative Trustees shall consult with the Depositor before taking any Ministerial Action in relation to an Investment Company Event; and
(GL) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust Debt Securities;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Debt Securities in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesDebt Securities;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Debt Securities to the 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, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder);
(J) the engagement in such Ministerial Action as shall be necessary, appropriate, convenient or incidental to effect repayment of the Preferred Securities and the Common Securities to the extent the Debt Securities mature or are redeemed or the Put Option is exercised; and
(JK) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 interest therein, including to Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, and, if necessary, the remarketing of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing and deliveringof the Remarketing Agreement, the Underwriting Supplemental Remarketing Agreement and theUnderwriting Agreement providing for the sale of the Preferred Securities;
(vi) the execution and entering into of the Underwriting Agreement, the Remarketing Agreement, the Debt Securities purchase agreement and Common Securities purchase 29 -23- agreement and, if applicable, the Supplemental Remarketing Agreement; and
(vivii) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures Debt Securities will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 2 contracts
Samples: Trust Agreement (Atlas Air Capital Iii), Trust Agreement (Atlas Air Capital Iii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Business Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09)establishment of the Property Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the DebenturesDebentures in the Property Account;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i). The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Securities Registrar)Delaware Trustee have any of the duties and responsibilities, of the Property Trustee or the Administrative Trustees 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 of the Delaware Business Trust Act. The duties and obligations of the Delaware Trustee shall be determined solely by the express provisions of this Trust Agreement, and there shall be no other duties or obligations, express or implied, of the Delaware Trustee.
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, business activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 2 contracts
Samples: Trust Agreement (Sierra Pacific Resources Capital Trust Ii), Trust Agreement (Sierra Pacific Resources Capital Trust Ii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.provided
Appears in 2 contracts
Samples: Trust Agreement (Mellon Bank Corp), Trust Agreement (Mellon Bank Corp)
Authorization to Enter into Certain Transactions. (a) The Issuer 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 SectionSection 2.7, and in accordance with the following provisions (i) and (ii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees Issuer Trustees, as the case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Each Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Issuer Trust to enter into, and executing, delivering to execute and performing deliver on behalf of the Issuer Trust, the Certificate Depository Expense Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under applicable state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and Depositor, with the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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 consent to the appointment of a Paying Agent and 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;
(I) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Issuer Trust and preparing, executing the preparation and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FJ) sending notices unless otherwise required by applicable law, to execute on behalf of the Issuer Trust (either acting alone or assisting together with any or all of the Property Trustee in sending notices and other information regarding Administrative Trustees) any documents that the Trust Securities and Administrative Trustees have the Debentures power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder).
(ii) As among the Trustees, the 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 and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them the holding of such amounts in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts distributable to the Securityholders Holders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust, including distributing Issuer Trust and the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder); and
(J) registering transfers and exchanges any of the Preferred Securities duties, liabilities, powers or the authority of the Administrative Trustees set forth herein; and in accordance with this Trust Agreement (but only if at such time 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 shall be the Securities Registrar)prevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees or Administrative Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees acting on behalf of nor the Trust Administrative Trustees shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 SecurityholdersHolders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to fail be classified as an association taxable as a corporation or cease to qualify as other than 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Securityholders Holders in their capacity as SecurityholdersHolders.
(c) In connection with the issue and sale of the Preferred 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) preparing for the preparation and filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred 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) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Issuer Trust, and advising the Trustees advice to the Issuer Trust of actions they must take on behalf of the Issuer Trust, and preparing 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 StatesStates in connection with the sale of the Capital Securities;
(iii) preparing if the Depositor shall desire, the preparation for filing by the Issuer Trust and executing execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing listing, upon notice of issuance issuance, of any Preferred Capital Securities;
(iv) preparing the preparation for filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Capital Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(v) negotiating the preparation and execution of a Letter of Representations to the Depository Trust Company on behalf of the Issuer Trust; and
(vi) the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(vivii) 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 Administrative Trustee is Issuer Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that (i) the Issuer Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed to be classified as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as other than a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor Administrative Trustees, the Property Trustee and the Administrative Trustee Holder of a majority of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor any Administrative Trustee, Property Trustee and the Administrative Trustee holders of a majority of Common Securities 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 Capital Securities. In no event shall 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 regulation or interpretation thereof.
Appears in 2 contracts
Samples: Trust Agreement (Keycorp Capital Iii), Trust Agreement (Keycorp Capital Ii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 2 contracts
Samples: Trust Agreement (Lincoln National Capital Vi), Trust Agreement (Lincoln National Capital Vi)
Authorization to Enter into Certain Transactions. (a) ------------------------------------------------- The Trustees shall conduct the affairs of the 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) and (ii), the Trustees Administrative Trustee shall have the authority to enter into all transactions and agreements determined by the Trustees Administrative Trustee 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, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest interest, premium, if any, and principal payments on the Debentures and depositing them in the Payment AccountDebentures;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (SJG Capital Trust)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees Trustees, as the case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including including, without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the preparation and delivering filing by the Trust Securities with the Commission and the execution on behalf of the TrustTrust of a registration statement on the appropriate form in relation to the Exchange Offer and the issuance of the Trust Securities, including any amendments thereto and the taking of any action necessary or desirable to issue the Trust Securities pursuant to the Exchange Offer;
(B) the issuance of the Securities in exchange for Trust Debentures;
(C) causing the Trust to enter intointo and perform the transactions contemplated by and its obligations under the Dealer Manager Agreement, the Exchange Agent Agreement, the Common Securities Subscription Agreement and executing, delivering and performing on behalf of the Trust, the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the issuance of the Trust Securities and the purposes and function of the Trust, including the appointment of a successor depositary;
(CD) assisting in registering the Preferred registration of the Trust Securities under the Securities Act of 1933, as amended, and under applicable state securities or blue sky laws, laws and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(DE) assisting in the listing sending of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration notices (other than notices of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Edefault) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Trust Debentures to Securityholders the Holders in accordance with this Trust Agreement;
(F) the consent 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) the execution of the Securities on behalf of the Trust in accordance with this Trust Agreement;
(H) the execution and delivery of closing certificates, if any, pursuant to the Dealer Manager Agreement and application for a taxpayer identification number for the Trust;
(I) unless otherwise required by the Delaware Statutory Trust Act, executing on behalf of the Trust (either acting alone or together with the other Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement and the taking of any other actions specifically authorized by the Trust Agreement;
(J) determining, and giving notice of, special record dates in accordance with Section 4.01(c); and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is to be necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder)Agreement.
(ii) As among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment of the purchase price receipt and holding of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Trust Debentures and depositing them the holding of such amounts in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts distributable to the Securityholders Holders in respect of the Trust Securities;
(FE) exercising subject to the provisions of this Trust Agreement, the exercise of all of the rights, powers and privileges of a holder of the Trust Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Trust Debentures to the Securityholders Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) performing the duties of the Property Trustee set forth in this Trust Agreement, including the taking of all actions on behalf of the Trust with respect to the redemption of Trust Securities in accordance with the terms hereof; and
(J) after an a Trust Event of Default, the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder); and
(J) registering transfers and exchanges of the Preferred Securities . Except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.07(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust Trust) shall not not:
(i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property 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 SecurityholdersHolders, except as expressly provided herein, ,
(iii) take any action that would cause the Trust to fail be classified as other than one or cease more grantor trusts or custodial arrangements or to qualify be classified as a grantor trust an association or partnership for United States Federal U.S. 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 Trust other than the Trust Securities, or (vi) 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 Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Securities), or
(x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities issued in exchange for Debentures pursuant to the Exchange Offer and the Common Securities issued to GE Capital pursuant to Section 2.04. The Administrative 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 Trust or the Securityholders Holders in their capacity as SecurityholdersHolders.
(c) In connection with the issue and sale issuance of the Preferred Trust Securities pursuant to the Exchange Offer, GE Capital, as Holder of the Common Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor GE Capital in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Trust Securities, including any amendments theretothereto and the taking of any action necessary or desirable to issue the Trust Securities pursuant to the Exchange Offer;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale issuance all or part of the Preferred Trust Securities and doing the taking of any and all such acts, other than actions which that must be taken by or on behalf of the Trust, and advising advice to the Trustees Trust of actions they that must take be taken by or on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor Sponsor deems necessary or advisable in order to comply with the applicable laws of any such StatesStates in connection with the issuance of the Trust Securities pursuant to the Exchange Offer;
(iii) preparing for filing and executing on behalf the negotiation of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Dealer Manager Agreement providing for the sale issuance of the Preferred SecuritiesTrust Securities in exchange for the Trust Debentures; and
(viiv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Investment Company Act, and will not be classified as other than one or taxed more grantor trusts or custodial arrangements or classified as a corporation an association or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal U.S. federal income tax purposes. In this connection, GE Capital, as Holder of the Depositor Common Securities, and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines 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 Trust Securities. In no event shall GE Capital, as Holder of the Common Securities, or the Trustees be liable to the Trust or the Holders for any failure to comply with this Section that results from a change in law or regulation or in the interpretation thereof.
Appears in 1 contract
Samples: Trust Agreement (GE Capital Trust I)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee(s) shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Notes to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustee(s), or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustee(s)) any documents that the Administrative Trustee(s) have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesNotes;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Notes in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesNotes;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Notes to the 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, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustee(s) set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust he Trust) shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative Trustee Trustee(s) 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto, if required;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustee(s) are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures Notes will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustee(s) are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee Trustee(s) 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 Preferred Securities.
Appears in 1 contract
Samples: Trust Agreement (FPC Capital Ii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, executing on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution or exchange of the Trust Property in accordance with the terms of this Trust Agreement; and
(H) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default. Except as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures (it being understood that the Trust and Trustees 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 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 Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the determination as to whether the Capital Securities will be listed on and the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement or any additional underwriting or distribution agreement in connection with any subsequent sale of Capital Securities after the Closing Date providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration (including the execution of a registration statement on the appropriate form) of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York American Stock Exchange or any other national stock exchange or The the Nasdaq National Stock Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) execution of the Trust Securities in accordance with this Trust Agreement;
(H) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(I) to the extent provided provided, however in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FJ) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided, however in this Trust Agreement, the winding up of the affairs of and preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided, however in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided provided, however herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided provided, however herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States U.S. Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States U.S. Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States U.S. Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest interest, premium, if any, and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue incur any other debtobligations, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) execution of the Trust Securities in accordance with this Trust Agreement;
(H) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(I) 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 Holders of the Preferred Securities and the Holders of the Common Securities;
(J) to cause the Trust to perform its obligations under the Underwriting Agreement;
(K) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FL) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GM) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment establishment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(EB) making Distributions the receipt of the Debentures;
(C) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account; (D) the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration (including the execution of a registration statement on the appropriate form) of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;,
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement,
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;,
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) subject to this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing to prepare for filing by the Trust with the Commission and executing to execute on behalf of the Trust a registration statement on Form S-3 or S-4 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising advise the Trustees of actions they must take on behalf of the Trust, and preparing prepare for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing to prepare for filing by the Trust and executing to execute on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing to prepare for filing by the Trust with the Commission and executing to execute on behalf of the Trust 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 amendedAct, including any amendments thereto;
(v) negotiating to negotiate the terms of, and executing execute and deliveringdeliver, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee Trustees determines in their discretion to be necessary or desirable for such purposes., as long as such action
Appears in 1 contract
Samples: Trust Agreement (Hartford Capital V)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust AgreementDeclaration of Trust. 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 agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust AgreementDeclaration of Trust, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the Trust, the Certificate Depository Agreement Underwriting Agreement, the Letter of Representations and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amendedAct, and under state securities or blue sky laws, and qualifying the qualification of this Declaration of Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended1934 (the "Exchange Act"), and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance with this Declaration of Trust;
(H) to the extent provided in this Trust AgreementDeclaration of Trust, terminating the winding up of the affairs and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust AgreementDeclaration of Trust; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular SecurityholderSecurityholders).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust Junior Subordinated Debt Securities;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Junior Subordinated Debt Securities in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesJunior Subordinated Debt Securities;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(G) the distribution of the Trust AgreementProperty in accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Declaration of Trust, including distributing the winding up of the affairs of and liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than an Event of Default pursuant to paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement and 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); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.07(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or authority of the Administrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Declaration of Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction transactions except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or engage in any activities not authorized by this Trust AgreementDeclaration of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iii) intentionally take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" or as other than an association taxable as a corporation for United States Federal 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 Trust other than the Trust Securities, or (vi) 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 Declaration of Trust 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 Declaration of Trust 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 provided in this Declaration of Trust or by the terms of the Trust Securities, so long as any Junior Subordinated Debt Securities are held by the Property Trustee, (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 an independent law firm 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, that the Trust will not be classified as a grantor trust or will be classified as an association taxable as a corporation for United States federal income tax purposes or that the Junior Subordinated Debt Securities will not be classified as indebtedness for such purposes. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue issuance and sale of the Preferred Trust Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Declaration of Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation by the Trust of a prospectus relating to the Trust Securities and the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Trust Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and doing the determination of any and all such acts, other than actions which that must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Trust Securities under Section 12(b12 (b) or 12(g12 (g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(viv) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred SecuritiesTrust Securities and such other agreements as may be necessary or desirable in connection with the consummation of the transactions contemplated thereby, all in its capacity as Depositor and on behalf of the Trust; and
(viv) 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 each Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not (i) be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust or as other than an association taxable as a corporation for United States Federal federal income tax purposes and (iii) so that the Debentures Junior Subordinated Debt Securities will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and each of the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust AgreementDeclaration of Trust, that each of the Depositor and the each Administrative Trustee 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 Trust Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration (including the execution of a registration statement on the appropriate form) of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary of State of the State of Delaware;
notices (F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending than notices of defaults, redemptions, Extension Periods, liquidations default) and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HF) to the extent provided in this Trust Agreementappointment of a Paying Agent, terminating authenticating agent and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities Registrar in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (Cfac Capital I)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Business Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the other Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York American Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust AgreementDeclaration of Trust. 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 agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust AgreementDeclaration of Trust, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the Trust, the Certificate Depository Agreement Underwriting Agreement, the Letter of Representations and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amendedAct, and under state securities or blue sky laws, and qualifying the qualification of this Declaration of Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended1934 (the "Exchange Act"), and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance with this Declaration of Trust;
(H) to the extent provided in this Trust AgreementDeclaration of Trust, terminating the winding up of the affairs and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust AgreementDeclaration of Trust; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular SecurityholderSecurityholders).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust Junior Subordinated Debt Securities;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Junior Subordinated Debt Securities in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesJunior Subordinated Debt Securities;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(G) the distribution of the Trust AgreementProperty in accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Declaration of Trust, including distributing the winding up of the affairs of and liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than an Event of Default pursuant to paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement and 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); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.07(a)(ii), the Property Trustee shall be have none of the Securities Registrar)duties, liabilities, powers or authority of the Administrative Trustees set forth in Section 2.07(a)(i) .
(b) So long as this Declaration of Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction transactions except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or engage in any activities not authorized by this Trust AgreementDeclaration of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iii) intentionally take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" or as other than an association taxable as a corporation for United States Federal 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 Trust other than the Trust Securities, or (vi) 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 Declaration of Trust 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 Declaration of Trust 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 provided in this Declaration of Trust or by the terms of the Trust Securities, so long as any Junior Subordinated Debt Securities are held by the Property Trustee, (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 an independent law firm 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, that the Trust will not be classified as a grantor trust or will be classified as an association taxable as a corporation for United States federal income tax purposes or that the Junior Subordinated Debt Securities will not be classified as indebtedness for such purposes. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue issuance and sale of the Preferred Trust Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Declaration of Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation by the Trust of a prospectus relating to the Trust Securities and the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Trust Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and doing the determination of any and all such acts, other than actions which that must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Trust Securities under Section 12(b12 (b) or 12(g12 (g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(viv) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred SecuritiesTrust Securities and such other agreements as may be necessary or desirable in connection with the consummation of the transactions contemplated thereby, all in its capacity as Depositor and on behalf of the Trust; and
(viv) 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 each Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not (i) be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust or as other than an association taxable as a corporation for United States Federal federal income tax purposes and (iii) so that the Debentures Junior Subordinated Debt Securities will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and each of the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust AgreementDeclaration of Trust, that each of the Depositor and the each Administrative Trustee 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 Trust Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) execution of the Trust Securities in accordance with this Trust Agreement;
(H) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(I) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FJ) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States U.S. Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest interest, premium, if any, and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The Nasdaq National Stock Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Delaware Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Trust Securities upon such securities exchange or exchanges as the Depositor Sponsor shall determine and the registration of the Preferred Trust Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures Trust Debt Securities to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as is necessary or advisable or as the Administrative Delaware Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the DebenturesTrust Debt Securities;
(D) collecting interest interest, premium, if any, and principal payments on the Debentures Trust Debt Securities and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the DebenturesTrust Debt Securities;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures Trust Debt Securities to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(I) after an Event of Default, taking any action incidental to the foregoing as is necessary or advisable or 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the DebenturesTrust Debt Securities), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue incur any other debtobligations, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative Delaware 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Trust Securities, the Depositor Sponsor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor Sponsor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The Nasdaq National Stock Market for listing upon notice of issuance of any Preferred Trust Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Trust Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, including any amendments thereto;
(v) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Trust Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Delaware Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes purposes, (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes purposes, and (iii) the Debentures Trust Debt Securities will be treated as indebtedness of the Depositor Sponsor for United States Federal income tax purposes. In this connection, the Depositor Sponsor and the Administrative Delaware Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor Sponsor and the Administrative Delaware Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (Southwest Gas Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of shall not cause the Trust shall not to (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, or taxed as amended, and will be classified as a "grantor trust" and not as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Statutory Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail be classified as an association taxable as a corporation or cease to qualify as other than 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Capital Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed to be classified as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as other than a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail be classified as an association taxable as a corporation or cease to qualify as other than 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form 8-8- A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed to be classified as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as other than a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Samples: Trust Agreement (Mellon Capital Iii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder)) and, within five Business Days after the occurrence of any Event of Default actually known to the Property Trustee, to give notice thereof to the Securityholders; and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities Securities, the Guarantee and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Purchase Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.Depositor
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection , Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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; 18 12
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreement, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;; and
(I) after an Event of Defaultexcept as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the 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 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 Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed 20 15 by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Samples: Trust Agreement (Chase Capital Iii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
: (i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
: (A) executing the issuance and delivering sale of the Trust Securities on behalf of the Trust;
Securities; (B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
; (C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
; (D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
; (E) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement; (F) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
; (FG) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
and (GH) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.10
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration (including the execution of a registration statement on the appropriate form) of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary notices (other than notices of State of the State of Delaware;
(Fdefault) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) 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 or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and
(GI) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of DelawareState;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York American Stock Exchange or any other national stock exchange or The Nasdaq National the NASDAQ Stock Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Business Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the other Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (American Coin Merchandising Trust Iv)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Article VIII, and in accordance with the following provisions (i) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each of the Administrative Trustee Trustees, acting singly or together, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting to assist in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting to assist in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; and to seek relief from the reporting requirements of the Securities Exchange Act of 1934, as amended;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) the establishment of a record date for any of the purposes contemplated by Section 6.7 hereof;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and 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); and
(J) registering transfers and exchanges engaging in such ministerial activities as shall be necessary, appropriate, convenient or incidental to effect the repayment of the Preferred Capital Securities and the Common Securities to the extent the Debentures mature or are redeemed. Except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of shall not cause the Trust shall not to (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a “grantor trust trust” for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Capital Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(viv) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) the taking of any other actions deemed by the Depositor to be necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, Investment Company Act or taxed classified as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Samples: Trust Agreement (Ace LTD)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, executing on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement; and
(H) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default. Except as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures (it being understood that the Trust and Trustees 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing if the Depositor elects, the preparation for filing by the Trust and executing execution on behalf of the Trust an of any application to the New York Stock Exchange or any other national stock exchange or The Nasdaq NASDAQ National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Samples: Trust Agreement (TCF Financial Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state State securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Securities upon such securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Statutory Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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 ministerial matters:
(A) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the deposit of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesDebentures as and to the extent specifically required by, and subject to, the terms of this Trust Agreement;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, ; (iii) take any action that would cause the Trust to fail be classified as an association taxable as a corporation or cease to qualify as other than a grantor trust for United States Federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or issue any other debt, ; or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesSecurities 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) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed to be classified as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as other than a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration (including the execution of a registration statement on the appropriate form) of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange, the American Stock Exchange or any other national stock exchange or The the Nasdaq National Market Stock Market, Inc. for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form 8-8- A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest interest, premium, if any, and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee(s) shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Notes to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustee(s), or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustee(s)) any documents that the Administrative Trustee(s) have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesNotes;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Notes in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesNotes;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Notes to the 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, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustee(s) set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust Trust) shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative Trustee Trustee(s) 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form 8-8- A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto, if required;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustee(s) are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures Notes will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustee(s) are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee Trustee(s) 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 Preferred Securities.
Appears in 1 contract
Samples: Trust Agreement (Oneok Inc /New/)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection 2.7, Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the Trust, the Certificate Depository Agreement Agreement, the Trust Securities Certificates and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing 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 shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar and, if applicable, a transfer agent, in accordance with this Trust Agreement;
(G) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FH) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GI) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;; and
(I) after an Event of Defaultexcept as otherwise expressly provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesSecurities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) execution of the Trust Securities in accordance with this Trust Agreement;
(H) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(I) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FJ) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States U.S. Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States U.S. Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States U.S. Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debt Securities to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating Agreement the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trus- tees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement;
(J) the entering into of a Debt Security purchase agreement and Common Securities purchase agreement with the Depositor;
(K) the giving to the Depositor and the Property Trustee prompt written notice of the occurrence of an Investment Company Event; provided that the Administrative Trustees shall consult with the Depositor before taking any Ministerial Action in relation to an Investment Company Event; and
(GL) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust Debt Securities;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Debt Securities in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesDebt Securities;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Debt Securities to the 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, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder);
(J) the engagement in such Ministerial Action as shall be necessary, appropriate, convenient or incidental to effect repayment of the Preferred Securities and the Common Securities to the extent the Debt Securities mature or are redeemed or the Put Option is exercised; and
(JK) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 interest therein, including to Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, and, if necessary, the remarketing of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing and deliveringof the Remarketing Agreement, the Underwriting Supplemental Remarketing Agreement and theUnderwriting Agreement providing for the sale of the Preferred Securities;
(vi) the execution and entering into of the Underwriting Agreement, the Remarketing Agreement, the Debt Securities purchase agreement and Common Securities purchase 29 -23- agreement and, if applicable, the Supplemental Remarketing Agreement; and
(vivii) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures Debt Securities will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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 (iA) and (iiB), the Trustees shall have the authority to enter into all transactions trans- actions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
: (iA) As among the Trustees, the Administrative Trustee Trustees shall have the power power, duty and authority to act on behalf of the Trust with respect to the following matters:
(Ai) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(Bii) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(Ciii) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(Div) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Ev) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary of State of the State of Delaware;
notices (F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending than notices of defaults, redemptions, Extension Periods, liquidations default) and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(Hvi) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(Iix) after an Event of Defaultunless otherwise determined by the Depositor, 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 Administrative Trustees, or as otherwise required by the Delaware Business Trust Agreement and protect and conserve Act or the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effectIndenture Act, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting to execute on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.either
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar and Transfer Agent in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) subject to this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets investments or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the --- Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a - Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (Hartford Financial Services Group Inc/De)
Authorization to Enter into Certain Transactions. (a) The Trustees and the Administrators shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the TrusteesTrustees and the Administrators, the Administrative Trustee each Administrator shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing issuing and delivering selling the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating winding up the affairs of and liquidating the Trust and preparing, executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending (other than notices of defaults) and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee Administrators may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) As among the TrusteesTrustees and the Administrators, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust SecuritiesDebentures;
(C) receiving collecting interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments distributing amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising all of the rights, powers and privileges of a holder of the Debentures;
(GF) sending notices of defaults, redemptions, Extension Periods, liquidations defaults and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, winding up the affairs of and preparing, liquidation of the Trust and the executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees and the Administrators acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the DebenturesDebentures as provided herein), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing by the Trust with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing prepare for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing by the Trust and executing on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The Nasdaq the NASDAQ National Market for listing upon notice of issuance of any Preferred Capital Securities;
(iv) preparing for filing by the Trust with the Commission and executing on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Capital Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, including any amendments thereto;
(v) negotiating the terms of, and executing and delivering, the Underwriting Purchase Agreement providing for the sale of the Preferred Capital Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is Administrators are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal federal income tax purposes (ii) and so that the Trust will qualify as a grantor trust for United States Federal federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Administrators are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee Administrators determines in their discretion to be necessary or desirable for such purposes, as long as such action does not materially adversely affect the interests of the holders of the Capital Securities.
Appears in 1 contract
Samples: Trust Agreement (Usf&g Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, executing on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement; and
(H) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default. Except as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures (it being understood that the Trust and Trustees 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing 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 the NASDAQ Global Select Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will shall not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will shall be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Business Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the other Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York American Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Samples: Trust Agreement (American Coin Merchandising Trust Iv)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing without the consent of any Person to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the Trust, the Expense Agreement, the Registration Rights Agreement and the Certificate Depository Depositary Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting assisting, in registering connection with the Registration Rights Agreement, in the registration of the Preferred Securities under the Securities Act of 1933, as amendedamended (including executing the Registration Statement), and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing registration or listing, if any, of the Preferred Securities upon on such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation preparation, executing and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement;
(J) assisting in the designation of the Preferred Securities for trading in the Private Offering, Resales and Trading through the Automatic Linkages (PORTAL) system; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal (and holding the Debentures;
(Dpremium, if any) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any ministerial 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" or cause the Trust to be classified as a corporation for United States Federal federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation by the Trust of an Offering Memorandum in relation to the Preferred Securities and the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates or other applicable jurisdictions in connection with the sale of the Preferred Securities;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange The Depository Trust Company or any other national stock trading facility or exchange for registration or The Nasdaq National Market for listing upon notice of issuance of any Preferred SecuritiesSecurities and filing with such exchange such notifications and documents as may be necessary from time to time to maintain such listing;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Registration Rights Agreement, the Purchase Agreement providing for the sale of the Preferred SecuritiesSecurities and the negotiation of the terms of and execution and delivery of, on behalf of the Trust, the Purchase Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, and will not be classified as other than a grantor trust or taxed as an association taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Samples: Trust Agreement (Riggs Capital Ii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Statutory Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of shall not cause the Trust shall not to (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a “grantor trust trust” for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 ActInvestment Company Act of 1940, or taxed as amended, and will be classified as a “grantor trust” and not as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Issuer 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) and (ii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Issuer 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 without limitation, the following:
(i) As among the Trustees, the Each Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Issuer Trust to enter into, and executingto execute, delivering deliver and performing perform 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, including the appointment of a successor depositary;
(C) assisting in registering compliance with the Preferred Securities Registration Rights Agreement, including filings under the Securities Act of 1933Act, as amended, and under applicable state securities or blue sky laws, laws and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges as may be determined by the Depositor shall determine and Depositor, in the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, if required, and in the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to assisting in obtaining the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State designation of the State of DelawareCapital Securities for trading in PORTAL (if applicable);
(F) assisting in the sending of notices or assisting the Property Trustee in sending (other than notices of default) and other information regarding the Trust Securities and the Debentures to Securityholders the Holders in accordance with this Trust Agreement;
(G) the consent 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);
(H) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement;
(I) execution and delivery of closing certificates, if any, pursuant to the Purchase Agreement and application for a taxpayer identification number for the Issuer Trust;
(J) 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 Statutory 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 Administrative Trustees have the power to execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder)Agreement.
(ii) As among the Trustees, the 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 and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them the holding of such amounts in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts distributable to the Securityholders Holders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the TrustIssuer Trust and the preparation, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;; and
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities RegistrarHolder).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Issuer Trustees acting on behalf of the Issuer Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 SecurityholdersHolders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Issuer Trust to fail become taxable as a corporation or cease to qualify classified as other than a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. Property or (vi) on or after the date hereof, enter into any contract or agreement for or on behalf of the Issuer Trust (other than the Certificate Depositary Agreement or any other depositary agreement with any securities exchange or automated quotation system) that does not expressly provide that the Holders of the Capital Securities, in their capacity as such, have limited liability (in accordance with the provisions of the Delaware Statutory Trust Act) for the liabilities and obligations of the Issuer Trust, which express provision may be in the following form: “The Administrative Holders of the Capital Securities, in their capacities as such, shall not be personally liable for any liabilities or obligations of the Issuer Trust arising out of this Agreement, and the parties hereto hereby agree that the Holders of the Capital Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware.” 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 Securityholders Holders in their capacity as SecurityholdersHolders. All actions of the Administrative Trustees shall be taken outside of the State of Texas.
(c) In connection with the issue and sale of the Preferred 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) preparing for filing with the Commission and executing on behalf preparation by the Issuer Trust of the Trust a registration statement on Form S-3 an offering circular in relation to the Preferred Capital Securities, including any amendments theretothereto 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) determining 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 in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which that must be taken by or on behalf of the Issuer Trust, and advising the Trustees advice to the Issuer Trust of actions they must take on behalf of the Issuer Trust, and preparing 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;
(iii) preparing for filing and executing on behalf States in connection with the sale of the 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 issuance of any Preferred Capital Securities;
(iv) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Purchase Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustees and the Property Trustee is are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that (i) the Issuer Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Investment Company Act, or taxed and will not be taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify classified as other than a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, each Administrative Trustee, the Depositor Property Trustee and the Administrative Trustee Holders of at least a Majority in Liquidation Amount of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each such Administrative Trustee, the Property Trustee or Holders of the Depositor and the Administrative Trustee determines 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 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 regulation or in the interpretation thereof.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment establishment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(EB) making Distributions the receipt of the Debentures;
(C) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account; (D) the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
; (FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (Usb Capital V)
Authorization to Enter into Certain Transactions. (a) The Issuer 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 (bSection 2.7(b) of this Section, and Article VIII and in accordance with the following provisions (i) and (ii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Issuer 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 without limitation, the following:
(i) As among the Issuer Trustees, the Administrative Trustee Trustees shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Issuer Trust to enter into, execute, deliver and executing, delivering and performing perform on behalf of the Issuer Trust, the Certificate Depository Depositary Agreement, the Agent Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges or automated system or systems, if any, as shall be determined by the Depositor shall determine Depositor, and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities, the Junior Subordinated Debentures and the Preferred Stock to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and a Securities Registrar in accordance with this Trust Agreement, in addition to U.S. Bank National Association as initial Paying Agent and Securities Registrar;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Issuer Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting execution and delivery of closing certificates, if any, pursuant to the Underwriting Agreement and any Remarketing Agreement and application for a taxpayer identification number for the Issuer Trust;
(J) unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Statutory Trust Act, the Trust Securities and Indenture Act or other applicable law, to execute on behalf of the Debentures Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and;
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular SecurityholderSecurityholders); and
(L) the taking of any action required to be taken by the Administrative Trustees under any of the Transaction Agreements.
(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 and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the execution and delivery on behalf of the purchase price Issuer Trust of the Stock Purchase Contract Agreement, the Collateral Agreement, the Remarketing Agreement, and any other Transaction Agreement other than the Underwriting Agreement, the Agent Agreement and the Certificate Depositary Agreement and the performance by the Issuer Trust Securitiesof its obligations and the exercise by the Issuer Trust of its rights thereunder;
(C) receiving and holding the Debenturesreceipt of the Junior Subordinated Debentures and, in connection with an Exchange, Notice of Contingent Exchange Election or Remarketing, the receipt of Qualifying Treasury Securities;
(D) collecting interest the receipt of the Remarketing Treasury Securities from the Remarketing Agent;
(E) the pledge of Junior Subordinated Debentures, Remarketing Treasury Securities and principal payments Qualifying Treasury Securities pursuant to the Collateral Agreement;
(F) the receipt of the Preferred Stock on the Stock Purchase Date;
(G) the collection of interest, principal and any other payments or instruments (including due bills or promissory notes of the Depositor issuable under or with respect to the Junior Subordinated Debentures) made in respect of the Junior Subordinated Debentures and depositing them in the Payment Account;
(EH) making Distributions the collection of the Contract Payments and any other payments or instruments (including due bills or promissory notes of the Depositor issuable under the Stock Purchase Contract Agreement or with respect to the Contract Payments) and the holding of such amounts in the Payment Account;
(I) the collection of payment of dividends, redemption price and other payments made in respect of the Preferred Stock and the holding of such amounts in the Payment Account;
(J) the distribution through the Paying Agent of amounts or property or instruments (including due bills or promissory notes of the Depositor issuable under or with respect to the Junior Subordinated Debentures or the Stock Purchase Contracts) owed to the Securityholders in respect of the Trust Securities;
(FK) exercising the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures for so long as the Issuer Trust holds Junior Subordinated Debentures, subject to Articles V and VI of this Trust Agreement;
(GL) the exercise of all of the rights, powers and privileges of a holder of Preferred Stock for so long as the Issuer Trust holds Preferred Stock, subject to Articles V and VI of this Trust Agreement;
(M) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities Securities, the Junior Subordinated Debentures, the Preferred Stock and the Debentures Transaction Agreements to the Securityholders in accordance with this Trust Agreement;
(HN) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(O) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparingliquidation of the Issuer Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;; and
(IP) after an Event of DefaultDefault (other than under paragraph (c), (d), (e) or (f) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and 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); and
(JQ) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative 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 acting on behalf of the Issuer Trust) shall not undertake any business, activities or transaction transactions except as expressly provided herein or contemplated hereby. In particular, the Issuer Trustees (acting on behalf of the Trust Issuer Trust) shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would could cause the Issuer Trust to fail become classified as an association or cease to qualify publicly traded partnership taxable as a corporation or as other than one or more grantor trust trusts or agency arrangements 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 Trust other than the Trust Securities, or (vi) 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) acquire any assets other than the Trust Property, (vii) invest any proceeds received by the Issuer Trust from holding Trust Property except to the extent expressly required pursuant to this agreement, (viii) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities (except to the extent expressly authorized herein or by the terms of the Trust Securities), or (ix) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities. The Administrative 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 Securityholders in their capacity as SecurityholdersSecurityholders (other than the Lien created by the Collateral Agreement, which is a permitted Lien).
(c) In connection with the issue issuance and sale of the Preferred 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) preparing for the preparation and filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which that must be taken by or on behalf of the Issuer Trust, and advising the advice to the Issuer Trustees of actions they must take on behalf of the Issuer Trust, and preparing 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 Statesstates;
(iii) preparing following the Stock Purchase Date, the preparation for filing by the Issuer Trust and executing 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 any automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital 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) preparing following the Stock Purchase Date, the preparation for filing by the Issuer Trust with the Commission and executing the execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to the registration of the Preferred Capital Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and;
(vi) the appointment of the Securities Registrar in accordance with Section 5.4;
(vii) the setting of any special record date in accordance with Section 4.1(g), and
(viii) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that (i) the Issuer Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed to be classified as an association or publicly traded partnership taxable as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a other than one or more grantor trust trusts or agency arrangements for United States Federal income tax purposes and (iii) 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 Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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.
Appears in 1 contract
Samples: Trust Agreement (State Street Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 18 13 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(F) exercising all the sending of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):): 20 15
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (Chase Capital Iii)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the Trust, the Certificate Depository Agreement Agreement, the Underwriting Agreement, and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(EF) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(GI) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly 18 12 provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the 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 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 Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The Nasdaq the NASDAQ National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Samples: Trust Agreement (Mbna Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the TrustTrust the Expense Agreement, the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the other Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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 establishing and maintaining of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and;
(J) so long as the Property Trustee is the Securities Registrar, registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement Agreement; and
(but only if at such time K) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the adoption of this Trust Agreement, the substitution of the Depositor for the Initial Depositor and other actions related to the Asset Purchase Agreement, the Initial Depositor had and the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing on behalf of the execution by the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or of on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York American Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement or other instrument providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, executing on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement; and
(H) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default. Except as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures (it being understood that the Trust and Trustees 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing if the Depositor elects, the preparation for filing by the Trust and executing execution on behalf of the Trust an of any application to the New York Stock Exchange or any other national stock exchange or The Nasdaq NASDAQ National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Samples: Trust Agreement (TCF Capital I)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the TrusteesEach Regular Trustee, the Administrative Trustee acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to assisting in the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary notices (other than notices of State of the State of Delaware;
(Fdefault) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures Notes to the Securityholders in accordance with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent in accordance with this Trust Agreement;
(G) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates pursuant to the Underwriting Agreement and application for a taxpayer identification number for the Trust;
(I) unless otherwise determined by the Depositor, the Property Trustee or the Holders of Preferred Securities representing more than 50% of the aggregate Liquidation Amount of the Outstanding Preferred Securities, or as otherwise required by the Delaware Statutory Trust Act or the Trust Indenture Act, to execute on behalf of the Trust (either acting alone or together with any or all of the Regular Trustees) any documents that the Regular Trustees have the power to execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the The Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment establishment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(EB) making Distributions the receipt of the Notes;
(C) the collection of interest, principal and any other payments made in respect of the Notes in the Payment Account; (D the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (Sce Trust I)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection 2.7, Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and AND under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;; and
(I) after an Event of Defaultexcept as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the 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 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 Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this SectionSection and Section 2.6, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the TrustTrust the Expense Agreement, the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amendedAct, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the other Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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 establishing and maintaining of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
; (FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the extent provided Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, terminating authenticating agent and liquidating Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) the winding up of the affairs of and liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise determined by the Depositor or assisting as otherwise required by the Property Trustee in sending notices and other information regarding Delaware Statutory Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(IH) after an Event of Default, Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder);
(I) registering transfers of the Trust Securities in accordance with this Trust Agreement; and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of shall not cause the Trust shall not to (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a “grantor trust trust” for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Stock Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 ActInvestment Company Act of 1940, or taxed as amended, and will be classified as a “grantor trust” and not as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon the New York Stock Exchange or any other such securities national stock exchange or exchanges or the Nasdaq National Market or any other automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, Conversion Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Business Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;; and
(I) after an Event of Defaultexcept as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, Section and Article VIII and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee Trustee, acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing the Trust to enter into, and executingto execute, delivering deliver and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparing, executing the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices unless otherwise required by the Delaware Statutory Trust Act or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and Indenture Act, executing on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GJ) taking any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement; and
(H) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparing, executing liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default. Except as otherwise provided in this Section 2.7(a)(ii), 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) 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 Debentures (it being understood that the Trust and Trustees 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) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Capital Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust a of one or more registration statement statements on Form S-3 the appropriate form in relation to the Preferred Capital Securities, including any amendments thereto;
(ii) determining the States determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Capital Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such Statesstates;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred SecuritiesCapital Securities 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) preparing for filing with the Commission and executing on behalf negotiation of the Trust 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) negotiating the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Capital Securities; and
(viv) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will shall not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will shall be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Capital Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a1) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Delaware Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Trust Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Trust Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures Trust Debt Securities to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Delaware Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the DebenturesTrust Debt Securities;
(D) collecting interest interest, premium, if any, and principal payments on the Debentures Trust Debt Securities and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the DebenturesTrust Debt Securities;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures Trust Debt Securities to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, dissolving, liquidating and terminating and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Trust Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b2) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the DebenturesTrust Debt Securities), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue incur any other debtobligations, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative Delaware 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 Trust or the Securityholders in their capacity as Securityholders.
(c3) In connection with the issue and sale of the Preferred Trust Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the Trust an application to the New York Stock Exchange or any other national stock exchange or The Nasdaq National Stock Market for listing upon notice of issuance of any Preferred Trust Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Trust Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, including any amendments thereto;
(v) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Trust Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d4) Notwithstanding anything herein to the contrary, the Administrative Delaware Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "“investment company" ” required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes purposes, (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes purposes, and (iii) the Debentures Trust Debt Securities will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Delaware Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Delaware Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Samples: Trust Agreement (Southwest Gas Corp)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing and delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering and performing 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, including the appointment of a successor depositary;
(C) assisting in registering the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating dissolving and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating dissolving and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the TrusteesEach Regular Trustee, the Administrative Trustee acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to assisting in the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary notices (other than notices of State of the State of Delaware;
(Fdefault) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures Shares to the Securityholders in accordance with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent in accordance with this Trust Agreement;
(G) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates pursuant to the Underwriting Agreement and application for a taxpayer identification number for the Trust;
(I) unless otherwise determined by the Depositor, the Property Trustee or the Holders of Preferred Securities representing more than 50% of the aggregate Liquidation Amount of the Outstanding Preferred Securities, or as otherwise required by the Delaware Statutory Trust Act or the Trust Indenture Act, to execute on behalf of the Trust (either acting alone or together with any or all of the Regular Trustees) any documents that the Regular Trustees have the power to execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the The Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesShares;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Shares in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesShares;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Shares to the 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, terminating assisting in the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of suchterm if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges any of the Preferred Securities duties, liabilities, powers or the authority of the Regular Trustees set forth in accordance with this Trust Agreement Section 2.7(a)(i)(E), (but only if at such time F) and (J); and in the event of a conflict between the actions of the Regular Trustees and those of the Property Trustee, the actions of the Property Trustee shall be the Securities Registrar)prevail.
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust Trust) shall not (i) acquire any assets or investments (other than the Debentures)Shares, reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or (ii) engage in any activities not authorized by this Trust Agreement, (iiiii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iiiiv) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, (ivv) 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 Trust other than the Trust Securities, debt or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders; provided, however, that (x) all expenses relating to such defense shall be borne by the Depositor and (y) the Property Trustee shall be fully indemnified by the Depositor for all costs incurred in connection with such defense.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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, if required;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is authorized Trustees are authorized, and directed the Regular Trustees are directed, to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify be classified as a grantor trust for United States Federal income tax purposes [and (iii) so that the Debentures Shares will be treated as indebtedness of the Depositor for United States Federal income tax purposes. .] In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee Trustees 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 Preferred Securities.
Appears in 1 contract
Samples: Trust Agreement (Sce Trust I)
Authorization to Enter into Certain Transactions. (a) The Issuer 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) and (ii), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Issuer 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 without limitation, the following:
(i) As among the Trustees, the Each Administrative Trustee shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Issuer Trust to enter into, and executingto execute, delivering deliver and performing perform 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, including the appointment of a successor depositary;
(C) assisting in registering compliance with the Preferred Securities Registration Rights Agreement, including filings under the Securities Act of 1933Act, as amended, and under applicable state securities or blue sky laws, and qualifying this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and Depositor, with the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended, if required, and with the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to assisting in obtaining the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate of cancellation with the Secretary of State designation of the State of DelawareCapital Securities for trading in PORTAL (if applicable);
(F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
sending of notices (E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending than notices of defaults, redemptions, Extension Periods, liquidations default) and other information regarding the Trust Securities and the Debentures to the Securityholders Holders in accordance with this Trust Agreement;
(HG) the consent to the extent provided in this Trust Agreementappointment of a Paying Agent, terminating authenticating agent and liquidating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement, and preparing, executing and filing the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default, 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 Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities Registrar in accordance with this Trust Agreement (but only if at such time the Property Trustee which consent shall not be the Securities Registrarunreasonably withheld).;
(bH) So long as this Trust Agreement remains in effect, execution of the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting Securities on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or engage in any activities not authorized by accordance with this Trust Agreement;
(I) execution and delivery of closing certificates, if any, pursuant to the Purchase Agreement and application for a taxpayer identification number for the Issuer Trust;
(iiJ) sell, assign, transfer, exchange, mortgage, pledge, set-off unless otherwise determined by the Property Trustee or otherwise dispose Holders of any at least a Majority in Liquidation Amount of the Capital Securities or as otherwise required by the Delaware Business Trust Property Act or interests therein, including to Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust Indenture Act, to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect execute on behalf of the Trust, the following Issuer Trust (and either acting alone or together with 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) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.or
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (bc) of this Section, and in accordance with the following provisions (iA) and (iiB), the Trustees shall have the authority to enter into all transactions trans- actions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(iA) As among the Trustees, the Administrative Trustee Trustees shall have the power power, duty and authority to act on behalf of the Trust with respect to the following matters:
(Ai) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(Bii) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(Ciii) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(Div) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(Ev) 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;
(vi) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(Fix) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(Gx) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular SecurityholderSecurity- holder).
(iiB) 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:
(Ai) establishing the establishment and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment maintenance of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(Eii) making Distributions 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 the Trust Agreement as a trust indenture under the Trust Indenture Act;
(iii) the receipt of the Debentures;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures into the Payment Account;
(v) the distribution of amounts owed to the Securityholders Security- holders in respect of the Trust Securities;
(Fvi) exercising all the sending of the rights, powers and privileges of a holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(Hvii) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(viii) to the extent provided in this Trust Agreement, the winding up of the affairs of and preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(Iix) after an Event to cause the Trust to enter into, and to execute deliver and perform on behalf of Defaultthe Trust, the Expense Agreement and the Certificate Depositary Agreement and such other agreements as may be necessary or desirable in connection with the consummation hereof; and
(x) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify be treated as an association taxable 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, (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred SecuritiesSecuri- ties, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing to prepare for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising advise the Trustees of actions they must take on behalf of the Trust, and preparing prepare for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing to prepare for filing and executing on behalf of by the 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 issuance of any the Preferred Securities;
(iv) preparing to prepare for filing by the Trust with the Commission and executing on behalf of the Trust 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 amendedAct, including any amendments thereto;
(v) negotiating to negotiate the terms of, and executing execute and deliveringdeliver, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 ActInvestment Company Act of 1940, as amended, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and or any the Administrative Trustee determines in their its discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect the interests of the holders of the Preferred Securities. Any action not specifically assigned herein that the Trustees may be permitted or required to do under this Trust Agreement may be taken by majority vote of the Trustees.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust AgreementDeclaration of Trust. 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 agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust AgreementDeclaration of Trust, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing perform on behalf of the Trust, the Certificate Depository Agreement Underwriting Agreement, the Letter of Representations and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the Preferred registration of the Capital Securities under the Securities Act of 1933, as amendedAct, and under state securities or blue sky laws, and qualifying the qualification of this Declaration of Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing listing, if any, of the Preferred Capital Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Capital Securities under the Securities Exchange Act of 1934, as amended1934 (the "Exchange Act"), and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance with this Declaration of Trust;
(H) to the extent provided in this Trust AgreementDeclaration of Trust, terminating the winding up of the affairs and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust AgreementDeclaration of Trust; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular SecurityholderSecurityholders).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust Junior Subordinated Debt Securities;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Junior Subordinated Debt Securities in the Payment Account;
(ED) making Distributions and other payments the distribution of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesJunior Subordinated Debt Securities;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust;
(G) the distribution of the Trust AgreementProperty in accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Trust Agreement, terminating and liquidating the Declaration of Trust, including distributing the winding up of the affairs of and liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than an Event of Default pursuant to paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement and 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); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.07(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or authority of the Administrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Declaration of Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction transactions except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or engage in any activities not authorized by this Trust AgreementDeclaration of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.,
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the TrusteesEach Regular Trustee, the Administrative Trustee acting singly or collectively, shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to assisting in the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary notices (other than notices of State of the State of Delaware;
(Fdefault) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures Shares to the Securityholders in accordance with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent in accordance with this Trust Agreement;
(G) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates pursuant to the Underwriting Agreement and application for a taxpayer identification number for the Trust;
(I) unless otherwise determined by the Depositor, the Property Trustee or the Holders of Preferred Securities representing more than 50% of the aggregate Liquidation Amount of the Outstanding Preferred Securities, or as otherwise required by the Delaware Statutory Trust Act or the Trust Indenture Act, to execute on behalf of the Trust (either acting alone or together with any or all of the Regular Trustees) any documents that the Regular Trustees have the power to execute pursuant to this Trust Agreement; and
(GJ) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the The Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesShares;
(C) receiving the collection of interest, principal and holding any other payments made in respect of the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them Shares in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the DebenturesShares;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures Shares to the 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, terminating assisting in the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges any of the Preferred Securities duties, liabilities, powers or the authority of the Regular Trustees set forth in accordance with this Trust Agreement Section 2.7(a)(i)(E), (but only if at such time F) and (J); and in the event of a conflict between the actions of the Regular Trustees and those of the Property Trustee, the actions of the Property Trustee shall be the Securities Registrar)prevail.
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust Trust) shall not (i) acquire any assets or investments (other than the Debentures)Shares, reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary the Trust Property or (ii) engage in any activities not authorized by this Trust Agreement, (iiiii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iiiiv) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal federal income tax purposes, (ivv) 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 Trust other than the Trust Securities, debt or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders; provided, however, that (x) all expenses relating to such defense shall be borne by the Depositor and (y) the Property Trustee shall be fully indemnified by the Depositor for all costs incurred in connection with such defense.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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, if required;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is authorized Trustees are authorized, and directed the Regular Trustees are directed, to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify be classified as a grantor trust for United States Federal income tax purposes [and (iii) so that the Debentures Shares will be treated as indebtedness of the Depositor for United States Federal income tax purposes. .] In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustee Trustees 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 Preferred Securities.
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Samples: Trust Agreement (Sce Trust I)
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) 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;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating liquidation of the Trust and preparingthe preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(FI) sending notices or assisting execution and delivery of closing certificates, pursuant to the Underwriting Agreement and the application for a taxpayer identification number;
(J) unless otherwise determined by the Depositor, the Property Trustee in sending notices and other information regarding or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Securities and Indenture Act, to execute on behalf of the Debentures Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to Securityholders in accordance with execute pursuant to this Trust Agreement; and
(GK) the taking of any action incidental to the foregoing as the Administrative Trustee Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the establishment of the Payment Account and appointing Paying Agents (subject to Section 5.09)Account;
(B) receiving payment the receipt of the purchase price of the Trust SecuritiesDebentures;
(C) receiving the collection of interest, principal and holding the Debentures;
(D) collecting interest and principal any other payments on made in respect of the Debentures and depositing them in the Payment Account;
(ED) making Distributions and other payments the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities;
(FE) exercising the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(GF) the sending of notices of defaults, redemptions, Extension Periods, liquidations default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(HG) to the extent provided in this Trust Agreement, terminating and liquidating the Trust, including distributing 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 preparingliquidation of the Trust and the preparation, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of DefaultDefault (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities except as otherwise provided in accordance with this Trust Agreement (but only if at such time Section 2.7(a)(ii), the Property Trustee shall be have none of the Securities Registrarduties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Trust to fail or cease to qualify as a "grantor trust trust" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, debt or (v) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, the Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for the preparation and filing by the Trust with the Commission and executing the execution on behalf of the Trust of a registration statement on Form S-3 the appropriate form in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the advice to the Trustees of actions they must take on behalf of the Trust, and preparing the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing the preparation for filing by the Trust and executing execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or The the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities;
(iv) preparing the preparation for filing by the Trust with the Commission and executing 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 amendedAct, including any amendments thereto;
(v) negotiating the negotiation of the terms of, and executing the execution and deliveringdelivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) 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 Administrative Trustee is Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify fail to be classified as a grantor trust for United States Federal income tax purposes and (iii) so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustee 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 Preferred Securities.
Appears in 1 contract
Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the 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) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters:
(A) executing the issuance and delivering sale of the Trust Securities on behalf of the TrustSecurities;
(B) causing to cause the Trust to enter into, and executingto execute, delivering deliver and performing 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 purposes and function of the Trust, including the appointment of a successor depositary;
(C) assisting in registering the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and qualifying the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor shall determine and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating and liquidating the Trust and preparing, executing and filing the certificate sending of cancellation with the Secretary of State of the State of Delaware;
notices (F) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the Administrative Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(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) establishing and maintaining the Payment Account and appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures and depositing them in the Payment Account;
(E) making Distributions and other payments to the Securityholders in respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder of the Debentures;
(G) sending than notices of defaults, redemptions, Extension Periods, liquidations default) and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(G) execution of the Trust Securities in accordance with this Trust Agreement;
(H) registering transfer of the Trust Securities in accordance with this Trust Agreement;
(I) 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 Holders of the Preferred Securities and the Holders of the Common Securities;
(J) to cause the Trust to perform its obligations under the Underwriting Agreement;
(K) to the extent provided in this Trust Agreement, terminating the winding up of the affairs of and liquidating the Trust, including distributing liquidation of the Trust Property in accordance with and the terms of this Trust Agreementpreparation, and preparing, executing execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(IL) after an Event of Defaultunless otherwise determined by the Depositor, 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 Administrative Trustees, or as otherwise required by the Delaware Business Trust Agreement and protect and conserve Act or the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities in accordance with this Trust Agreement (but only if at such time the Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effectIndenture Act, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees acting to execute on behalf of the Trust shall not (i) acquire any assets or investments (other than the Debentures), reinvest the proceeds derived from investments, possess any power or otherwise act in such a way as to vary 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 Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a grantor trust 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 Trust other than the Trust Securities, or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrative 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 Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf of the Trust a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and doing any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advising the Trustees of actions they must take on behalf of the Trust, and preparing for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the 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 issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on behalf of the Trust 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) negotiating the terms of, and executing and delivering, the Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustee is authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or a partnership for United States Federal income tax purposes (ii) the Trust will qualify as a grantor trust for United States Federal income tax purposes and (iii) the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustee are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust, as amended from time to time, or this Trust Agreement, that each of the Depositor and the Administrative Trustee determines in their discretion to be necessary or desirable for such purposes.either acting alone
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