Authorization to Enter into Certain Transactions. 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 Article VIII and in accordance with the following provisions (A) and (B), 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: (A) As among the Trustees, the Administrative Trustees, acting singularly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (i) the issuance and sale of the Trust Securities pursuant to the Underwriting Agreement; (ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement; (iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable; (iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act; (v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement; (vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof; (viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust; (ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created; (x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing; (xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and (xii) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder). (B) 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: (i) the establishment of the Payment Account; (ii) the receipt of the Debentures; (iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures; (iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement; (v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement; (vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement; (vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and (viii) 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 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). (a) Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement. (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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto; (ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities; (iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer; (iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof; (v) to take any other actions necessary or desirable to carry out any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 6 contracts
Samples: Trust Agreement (American Electric Power Co Inc), Trust Agreement (Aep Capital Trust Iii), Trust Agreement (American Electric Power Co Inc)
Authorization to Enter into Certain Transactions. 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting Agreement;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business statutory trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xii) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 3 contracts
Samples: Trust Agreement (Southwestern Electric Power Co), Trust Agreement (Southwestern Electric Power Co), Trust Agreement (Southwestern Electric Power 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iii) and (v) below, ____________________Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust), ) 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 States;
(iii) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the sale of Preferred Trust Securitiesconsummation thereof;
(iiiiv) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;; and
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 3 contracts
Samples: Trust Agreement (Texas Utilities Co /Tx/), Trust Agreement (Texas Utilities Co /Tx/), Trust Agreement (Txu Capital 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 Article VIII VIII, and in accordance with the following provisions paragraphs (Ai) and (Bii), 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 including, without limitation, the following:
(Ai) As among the Trustees, the Administrative Trustees, acting singularly singly or togetherjointly, shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(iA) to receive the issuance Convertible Debentures; provided, however, the Administrative Trustees shall cause legal title to all of the Convertible Debentures to be vested in, and sale the Convertible Debentures to be held of record in the name of, the Property Trustee for the benefit of the Trust Securities pursuant to and Holders of the Underwriting AgreementTrust Securities;
(iiB) without the consent of any Person, to cause the Trust to enter into employ or otherwise engage employees and to execute, deliver and perform on behalf of the Trust, such agreements as agents (who may be necessary or desirable in connection designated as officers with the consummation of the Underwriting Agreementtitles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ixC) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's ’s valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was has been created;
(xD) to execute take all action necessary to cause all applicable tax returns and deliver all documents or instrumentstax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, perform all duties and powers, and do all things for and on behalf of the Trust;
(E) to issue the Trust in all matters Securities;
(F) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or incidental desirable in connection with the consummation hereof;
(G) to assist in the registration of the Trust PIERS under the Securities Act and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(H) to assist in the registration or listing of the Trust PIERS with DTC or upon such securities exchange or exchanges as shall be determined by the Depositor and the registration of the Trust PIERS under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(xiI) to send notices (other than notices of default) and other information regarding the Trust Securities and the Convertible Debentures to the Holders in accordance with this Trust Agreement;
(J) to appoint a Paying Agent (subject to Section 5.10), Conversion Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(K) to assist in, to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation termination of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(L) to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary, appropriate, convenient or advisable to protect and conserve the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
(ii) As among the Trustees, the Property Trustee shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following ministerial matters:
(A) the establishment and maintenance of the Payment Account;
(B) the receipt of and holding of legal title to the Convertible Debentures as described herein and registration of transfers of the Trust Securities in accordance with this Trust Agreement;
(C) the deposit of interest, principal and any other payments made in respect of the Convertible Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(E) the sending of notices of default and other information regarding the Trust Securities and the Convertible Debentures to the Holders in accordance with this Trust Agreement;
(F) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(G) exercise all of the rights, powers and privileges of a holder of the Convertible Debentures under the Subordinated Indenture as and to the extent specifically required by, and subject to, the terms of this Trust Agreement;
(H) upon notice of Distribution or Contingent Distribution issued by the Administrative Trustees in accordance with the terms of this Trust Agreement, engage in such ministerial activities as shall be necessary or appropriate to effect promptly the Distribution or Contingent Distribution pursuant to terms of this Trust Agreement of Convertible Debentures to Holders of Trust Securities;
(I) engage in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Convertible Debentures are redeemed or mature;
(J) 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 protect and conserve the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder);
(K) take any legal action specifically required of the Property Trustee pursuant to the terms of this Trust Agreement which arises out of or in connection with an Event of Default or the Property Trustee’s duties and obligations under this Trust Agreement, the Delaware Statutory Trust Act or the Trust Indenture Act;
(L) as provided in this Trust Agreement, the winding up of the affairs of and termination of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and;
(xiiM) the taking take all actions and perform such duties as may be specifically required of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the power, duty and authority pursuant to act on behalf of the Trust with respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viiiN) the taking of any ministerial action incidental to the foregoing as the Property Trustee may from time to time determine is necessary necessary, appropriate, convenient or advisable to 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
(aO) Subject to except as may otherwise be provided in this Section 2.07(a)(B2.07(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Sections 2.07(a)(ASection 2.07(a)(i) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreementhereof.
(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, Trustees in their capacities as such shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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 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 money, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) issue any securities other than the Trust Securities or (vii) have any power to, or agree to any action by the Depositor that would, vary the investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of the Trust or of the Holders of Trust PIERS. The 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 SecuritiesPIERS, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file on behalf of the Trust, a registration statement on Form S-3 the appropriate form, in relation to the Preferred Trust SecuritiesPIERS, the Convertible Debentures, and the Guarantee, including any amendments thereto and to take any action necessary one or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant theretomore related prospectus supplements;
(ii) to determine the States states in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities PIERS and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, Trust and 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 in connection with the sale of Preferred Trust SecuritiesStates;
(iii) to select prepare for filing by the investment banker or bankers Trust, and to act as underwriters with respect execute on behalf of the Trust, an application to the offer New York Stock Exchange or any other national stock exchange or the NASDAQ National Market for listing upon notice of issuance of any Trust PIERS and sale by the Trust of Preferred Trust Securities ("Offer") to file or cause an Administrative Trustee to file thereafter with such exchange or organization such notification and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offerdocuments as may be necessary from time to time;
(iv) to prepare for filing by the Trust, and to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection Trust, with the consummation thereofCommission a registration statement on Form 8-A relating to the registration of the Trust PIERS under Section 12(b) of the Exchange Act, including any amendments thereto;
(v) to take prepare for filing by the Trust with the Commission and to execute on behalf of the Trust a Schedule TO in connection with the Depositor’s offer to exchange the Trust PIERS for any and all of the outstanding Trust Preferred Income Equity Redeemable Securities of Omnicare Capital Trust I, a Delaware statutory trust; and
(vi) any other actions necessary necessary, incidental, appropriate or desirable convenient to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "“investment company" ” required to be registered under the Investment Company Act of 1940, as amended, or classified taxed as other than as a "grantor trust" trust for United States Federal federal income tax purposes and so that the Convertible Debentures will be treated as indebtedness of the Debenture Issuer Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its discretion to be necessary or desirable for such purposes, as long as such action does not materially and adversely affect the interests of the Holders of the Preferred Trust SecuritiesPIERS.
Appears in 2 contracts
Samples: Trust Agreement (Omnicare Inc), Trust Agreement (Omnicare Capital Trust Ii)
Authorization to Enter into Certain Transactions. 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 Article VIII Section, and in accordance with the following provisions paragraphs (Aa) and (Bb), 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:
(Aa) As among the Trustees, the Administrative Trustees, acting singularly singly or togetherjointly, shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) to acquire the issuance and Junior Subordinated Debentures with the proceeds of the sale of the Trust Securities pursuant Securities; provided, however, the Administrative Trustees shall cause legal title to all of the Underwriting AgreementJunior Subordinated Debentures to be vested in, and the Junior Subordinated Debentures to be held of record in the name of, the Property Trustee for the benefit of the Trust and Holders of the Trust Securities;
(ii) without to give the consent Depositor and the Property Trustee prompt written notice of the occurrence of any PersonSpecial Event (as defined in the Supplemental Indenture) and to take any ministerial actions in connection therewith; provided, that the Administrative Trustees shall consult with the Depositor and the Property Trustee before taking or refraining to take any ministerial action in relation to a Special Event;
(iii) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of ss. 316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions, and exchanges, and to issue relevant notices to Holders of the Trust Securities as to such actions and applicable record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 2.07(b)(v), the Property Trustee has the power to bring such Legal Action;
(v) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's obligations under the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required by ss. 314(a)(4) of the Trust Indenture Act, which certificate may be executed by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Trust Agreement, the Remarketing Agreement and the Calculation Agent Agreement;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Trust Securities or to enable the Trust to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust;
(xi) to execute and deliver the Trust Securities on behalf of the Trust;
(xii) to cause the Trust to enter into into, and to execute, deliver and perform on behalf of the Trust, the Remarketing Agreement, the Calculation Agent Agreement, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreementhereof;
(iiixiii) to qualify the Trust to do business assist in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(vxiv) to assist in the listing, if any, listing of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems exchanges, if necessary and as shall be determined by the Depositor Depositor, and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vixv) to send notices (other than notices of default) and other information regarding the appointment or removal of Trust Securities and the Junior Subordinated Debentures to the Securityholders in accordance with this Trust Agreement, the Remarketing Agreement and the Calculation Agent Agreement;
(xvi) to appoint a Paying Agent and Transfer (subject to Section 5.09), authenticating agent, Remarketing Agent, Calculation Agent and Securities Registrar in accordance with this Trust Agreement;
(viixvii) to elect to remarket the establishment Preferred Securities and determine the length of a record date for any of the purposes contemplated by Section 6.07 hereofFixed Rate Period in accordance with this Trust Agreement, including redemption dates applicable to any Fixed Rate Period;
(viiixviii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to register transfers of the Trust on behalf of the trustSecurities in accordance with this Trust Agreement;
(ixxix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existenceassist in, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation termination of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
(xiixx) the taking of to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary necessary, appropriate, convenient or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(Bb) As among the Trustees, the Property Trustee shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following ministerial matters:
(i) engage in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Junior Subordinated Debentures are redeemed, mature or otherwise repaid;
(ii) upon notice of a distribution issued by the Administrative Trustees in accordance with the terms of this Trust Agreement, engage in such ministerial activities as shall be necessary or appropriate to effect promptly the distribution of Junior Subordinated Debentures to Holders of Trust Securities pursuant to the terms of this Trust Agreement;
(iii) subject to the terms hereof, exercise all of the rights, powers and privileges of a holder of the Junior Subordinated Debentures under the Subordinated Indenture and, if an Event of Default occurs and is continuing, shall enforce for the benefit of, and subject to the rights of, the Holders of the Trust Securities, its rights as holder of the Junior Subordinated Debentures under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement;
(v) take any Legal Action specifically required of the Property Trustee pursuant to the terms of this Trust Agreement which arises out of or in connection with an Event of Default or the Property Trustee's duties and obligations under this Trust Agreement, the Delaware Statutory Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the Payment Account;
(iivii) the receipt of and holding of legal title to the DebenturesJunior Subordinated Debentures as described herein;
(iiiviii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesJunior Subordinated Debentures in the Payment Account;
(ivix) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust AgreementSecurities;
(vx) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vixi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(viixii) to the extent as provided in this Trust Agreement, the winding up of the affairs of and liquidation termination of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of DelawareTrust; and
(viiixiii) the taking of any ministerial action incidental to the foregoing as the Property Trustee may from time to time determine is necessary necessary, appropriate, convenient or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(a) Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(bc) 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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, ; (ii) sell, assign, transfer, exchange, 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 federal income tax purposes, ; (iv) incur any indebtedness for borrowed money or money; (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property; (vi) issue any securities other than the Trust Securities; or (vii) have any power to, or agree to any action by the Depositor that would, vary the investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of the Trust or of the Securityholders. The 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.
(cd) In connection with the issue and sale of the Preferred Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 under the Securities Act of 1933, as amended, in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States states in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust SecuritiesStates;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale prepare for filing 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 Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the OfferSecurities, if applicable;
(iv) to execute and deliver prepare for filing by the Trust with the Commission a registration statement on behalf Form 8-A relating to the registration of the Trust Preferred Securities under Section 12(b) of the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereofExchange Act, including any amendments thereto;
(v) to take negotiate the terms of the Underwriting Agreement providing for the sale of the Preferred Securities and to execute, deliver and perform the Underwriting Agreement on behalf of the Trust;
(vi) to negotiate the terms of the Remarketing Agreement providing for the retention of the Remarketing Agent and the establishment of certain procedures relating to Remarketings;
(vii) to negotiate the terms of the Calculation Agent Agreement providing for the retention of the Calculation Agent;
(viii) to elect to remarket the Preferred Securities and determine the length of any Fixed Rate Period in accordance with this Trust Agreement, including redemption dates applicable to any Fixed Rate Period; and
(ix) any other actions necessary necessary, incidental, appropriate or desirable convenient to carry out any of the foregoing activities.
(de) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act of 1940, as amended, or classified taxed as other than as a "grantor trust" trust for United States Federal federal income tax purposes and so that the Junior Subordinated Debentures will be treated as indebtedness of the Debenture Issuer Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its discretion to be necessary or desirable for such purposes, as long as such action does not materially and adversely affect the interests of the Holders of the Preferred Trust Securities.
Appears in 2 contracts
Samples: Trust Agreement (Southwestern Electric Power Co), Trust Agreement (Southwestern Electric Power 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account;
(v) the registration of the Preferred Trust Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent as provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Capital Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iii) and (v) below, ____________________Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust), ) 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Capital Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Capital Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust SecuritiesStates;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(iv) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Capital Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities; and
(vi) to designate itself or an Affiliate to be the Transfer Agent and Registrar.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act of 1940, as amended, or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Capital Securities.
Appears in 2 contracts
Samples: Trust Agreement (Texas Utilities Electric Co), Trust Agreement (Texas Utilities Electric 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 AgreementDeclaration. Subject to the limitations set forth in Section 2.5 and paragraph (b) of this Section and Article VIII 2.6, and in accordance with the following provisions (Ai) and (Bii), the Property Trustee and the Administrative Trustees shall have the authority to enter into all transactions exclusive power and agreements determined by the Trustees to be appropriate in exercising the authority, express or impliedand are hereby authorized and directed to, otherwise granted cause the Trust to engage in the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the followingfollowing activities:
(Ai) As among the Trustees, the each Administrative Trustees, acting singularly or together, Trustee shall have the power, duty power and authority and is hereby authorized and directed to act on behalf of the Trust with respect to the following matters:
(iA) to execute, deliver and issue the Trust Securities; provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities; and, provided, further, that there shall be no interests in the Trust other than the Trust Securities; and, provided, further, that the issuance of Trust Securities shall be limited to simultaneous issuance of both Preferred Securities and sale Common Securities on the Closing Date, subject to the issuance of the Trust Securities pursuant to the Underwriting AgreementSection 5.5 and Successor Securities pursuant to Section 9.5;
(iiB) without to acquire the consent Debentures as provided herein; provided, however, that the Administrative Trustees shall cause legal title to the Debentures to be held of any Person, record in the name of the Property Trustee for the benefit of the Securityholders;
(C) to cause the Trust to enter into into, and to execute, deliver and perform on behalf of the Trust, any agreement or instrument (including, without limitation, such agreements certificates and cross-receipts as may be necessary or desirable in connection with the consummation issuance of the Underwriting AgreementTrust Securities and the purchase of the Debentures) as such Administrative Trustee deems necessary or incidental to the purposes and function of the Trust;
(iiiD) to qualify the Trust to do business assist in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement Declaration as a trust indenture under the Trust Indenture Act, and to cause the Trust to take any action deemed in such Administrative Trustee's discretion to be necessary, advisable or convenient to comply with the Trust's obligations under the Trust Indenture Act;
(vE) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of appoint a Paying Agent Agent, Conversion Agent, authenticating agent and Transfer Agent and a Securities Registrar in accordance with this Trust AgreementDeclaration;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xiF) to the extent provided in this Declaration, to wind up the affairs of and liquidate the Trust Agreementand prepare, execute and file the certificate of cancellation with the Secretary of State of the State of Delaware;
(G) to execute on behalf of the Trust (either acting alone or together with any other Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Declaration; and
(H) to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine in their discretion is necessary, advisable or convenient to give effect to the terms of this Declaration, including, but not limited to:
(i) causing the Trust not to be deemed to be an "investment company" required to be registered under the 1940 Act;
(ii) causing the Trust not to be classified for United States federal income tax purposes as a corporation; and
(iii) cooperating with the Depositor to ensure that the Debentures will be treated as indebtedness of the Depositor for United States federal income tax purposes; provided that such action does not adversely affect in any material respect the interests of Securityholders, except as otherwise provided in Section 10.2(a).
(ii) As among the Trustees, the Property Trustee shall have the power and authority and is hereby authorized and directed to act on behalf of the Trust with respect to the following matters:
(A) the establishment of the Property Account;
(B) to authenticate Preferred Securities delivered to it for authentication by or on behalf of an Administrative Trustee;
(C) the receipt of and taking title to the Debentures;
(D) the collection in the Property Account of interest, principal and any other payments made in respect of the Debentures;
(E) the distribution from the Trust Property of amounts owed to the Securityholders in respect of the Trust Securities pursuant to this Declaration;
(F) the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(G) the sending of notices of default, other notices and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Declaration;
(H) the distribution of the Trust Property in accordance with the terms of this Declaration;
(I) to the extent provided in this Declaration, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and;
(xiiJ) the taking of any action incidental to the foregoing (including executing any certificate or acknowledgment of the Property Trustee's receipt of the Debentures) as the Administrative Trustees Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Declaration 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).
(B) 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:
(i) the establishment of the Payment Account;
(iiK) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) Subject subject to this Section 2.07(a)(B2.6(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Sections 2.07(a)(ASection 2.6(a)(i);
(L) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rightsact as Paying Agent, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject Conversion Agent and/or Securities Registrar to the terms of extent appointed as such hereunder; and
(M) to appoint an authenticating agent in accordance with this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust AgreementDeclaration.
(b) So long as this Trust Agreement Declaration 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 TrusteesTrust shall not, acting on behalf of the Trust, Trustees shall not and the Administrative Trustees shall cause the Trust not to (i) invest any proceeds received by the Trust from holding the Debentures (rather, the Trustees shall distribute all such proceeds to the Securityholders pursuant to the terms of this Declaration and the Trust Securities), acquire any investments or engage in any activities not authorized by this Trust AgreementDeclaration, (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 that, to such Trustee's actual knowledge, would reasonably be expected to cause the Trust to fail or cease to qualify as a "grantor trust" for United States Federal federal income tax purposes, (iv) make any loans or incur any indebtedness for borrowed money or issue any other debt, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) possess any power or otherwise act in such a way as to vary the Trust assets or the terms of the Trust Securities in any way whatsoever except as permitted by the terms of this Declaration, or (vii) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest interests of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following actions (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement Declaration are hereby ratified and confirmed in all respects):
(i) to prepare for filing by cause the Trust to file, at the expense of the Depositor, with the Commission and to execute and file on behalf of the Trust a registration statement on Form S-3 the appropriate form in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States states and foreign jurisdictions in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions which they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securitiesstates and foreign jurisdictions;
(iii) to select the investment banker or bankers extent the Administrative Trustees deem necessary, to act as underwriters with respect to the offer and sale prepare for filing by the Trust with the Commission and 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 Exchange Act, including any amendments thereto (it being understood that neither the Trust nor the Depositor has any obligation under the Indenture, the Merger Agreement or the Declaration to register any Trust Securities ("Offer") and negotiate under the terms of an Underwriting Agreement and pricing agreement providing for the OfferExchange Act);
(iv) to execute cause the Trust to enter into, and execute, deliver and perform on behalf of the Trust the Underwriting Agreement and such other Trust, any agreements as may be necessary or desirable in connection with incidental to the consummation thereof;purposes and functions of the Trust; and
(v) to take any other actions necessary or desirable incidental to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company 1940 Act or classified other than be taxed as a "grantor trust" corporation for United States Federal federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust AgreementDeclaration, that each of the Depositor and the Administrative Trustees determines in its their discretion to be necessary or desirable for such purposes, as so long as such action does not materially adversely affect in any material respect the interests of the Holders of the Preferred Trust Securities, except as otherwise provided in Section 10.2(a).
Appears in 2 contracts
Samples: Declaration of Trust (Superior Trust I), Declaration of Trust (Superior Trust I)
Authorization to Enter into Certain Transactions. The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust AgreementDeclaration. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII Section, and in accordance with the following provisions (Ai) and (Bii), 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, and to perform all acts in furtherance thereof, including without limitation, the following:
(Ai) As among the Trustees, the Administrative Trustees, acting singularly or together, Trustees shall have the power, duty power and authority to act on behalf of the Trust with respect to the following matters:
(iA) the issuance executing and sale of delivering the Trust Securities pursuant to the Underwriting Agreement;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iiiB) acquiring the Notes with the proceeds of the sale of the Trust Securities; provided that the Administrative Trustees shall cause legal title to qualify the Notes to be held of record in the name of the Property Trustee for the benefit of the Holders of the Securities;
(C) giving the Depositor and the Property Trustee prompt written notice of the occurrence of a Tax Event; provided that the Administrative Trustees shall consult with the Depositor and the Property Trustee before taking or refraining from taking any action in relation to any such Tax Event;
(D) establishing a record date with respect to all actions to be taken hereunder that require a record date to be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act;
(E) bringing or defending, paying, collecting, compromising, arbitrating, resorting to legal action or otherwise adjust claims or demands of or against the Trust, unless pursuant to Section 2.07(a)(ii)(I), the Property Trustee has the power to bring any legal action;
(F) employing or otherwise engaging employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants to conduct only those services that the Administrative Trustees have authority to conduct directly, and to pay reasonable compensation for such services;
(G) causing the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) comply with the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture Trust's obligations under the Trust Indenture Act;
(vH) giving to the listing, if any, Property Trustee the certificate required by Section 314(a)(4) of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Indenture Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingwhich certificate may be executed by any Administrative Trustee;
(viI) the appointment incurring expenses that are necessary or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for incidental to carry out any of the purposes contemplated by Section 6.07 hereofof the Trust;
(viiiJ) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take taking all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises franchise and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust it was created;
(xK) taking all action necessary to execute cause all applicable tax returns and deliver all documents or instruments, perform all duties tax information reports that are required to be filed with respect to the Trust to be duly prepared and powersfiled;
(L) causing the Trust to enter into, and do all things for executing, delivering and performing on behalf of the Trust in all matters Trust, the Remarketing Agreement, the Common Securities Purchase Agreement, the Notes Purchase Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or incidental desirable in connection with the purposes and function of the Trust, including the appointment of a successor depositary;
(M) 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 Declaration as a trust indenture under the Trust Indenture Act;
(N) 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;
(xiO) to the extent provided in this Trust AgreementDeclaration, the winding up of the affairs of dissolving, liquidating and liquidation of terminating the Trust in accordance with the terms of this Declaration, and the preparationpreparing, execution executing and filing of the certificate of cancellation with the Secretary of State of the State of Delaware, if necessary;
(P) sending notices or assisting the Property Trustee in sending notices and other information regarding the Trust Securities and the Notes to Securityholders in accordance with this Declaration; and
(xiiQ) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve give effect to the Trust Property terms of this Declaration for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(Bii) 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:
(iA) establishing and maintaining the establishment 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 Notes;
(D) collecting interest, premium, if any, and principal payments on the Notes and depositing them in the Payment Account;
(iiE) the receipt of the Debentures;
(iii) the collection making Distributions and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust AgreementSecurities;
(vF) exercising all of the rights, powers and privileges of a holder of the Notes;
(G) sending of notices of default defaults, redemptions, Extension Periods, liquidations and other information regarding the Trust Securities and the Debentures Notes to the Securityholders in accordance with the terms of this Trust AgreementDeclaration;
(viH) engaging in such ministerial activities as shall be necessary or appropriate to effect the distribution redemption of the Trust Securities to the extent they are redeemed or mature;
(I) to the extent provided in this Declaration, dissolving, liquidating and terminating the Trust, including distributing the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust AgreementDeclaration, the winding up of the affairs of and liquidation of the Trust preparing, executing and the execution of filing the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and, if necessary;
(viiiJ) the after an Event of Default, 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 Declaration 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
(aK) Subject to registering transfers and exchanges of the Preferred Securities in accordance with this Section 2.07(a)(B), Declaration (but only if at such time the Property Trustee shall have none of be the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(cSecurities Registrar). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 2 contracts
Samples: Trust Agreement (Public Service Electric & Gas Co), Trust Agreement (Public Service Enterprise Group Inc)
Authorization to Enter into Certain Transactions. 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 Sponsor is hereby authorized and Article VIII and in accordance with the following provisions (A) and (B)directed, 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly or together, shall have the power, duty and authority to act on behalf of the Trust with respect Trust, to engage in the following mattersactivities:
(i) to prepare and file with the issuance Commission and sale execute, in each case on behalf of the Trust Securities pursuant Trust, (a) a Registration Statement on Form S-1, Form S-2 or Form S-3, as applicable (a "1933 Act Registratixx Xxxxxxxxx"), including any pre-effective or post-effective amendments thereto, relating to the Underwriting Agreementregistration of the Shares under the Securities Act, and (b) as applicable, a Registration Statement on Form 8-A (a "1934 Act Registration Statement") (including any pre-effective or post-effective amendments thereto) relating to the registration of the Shares under Section 12(b) or (g) of the Exchange Act;
(ii) without to prepare and file with the consent New York Stock Exchange and/or any other exchange or quotation service and execute, in each case on behalf of any Personthe Trust, an application therewith and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Trust Shares to enter into be listed on the New York Stock Exchange and/or any other exchange or quotation service;
(iii) to prepare and to file and execute, deliver and perform in each case on behalf of the Trust, such agreements applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers and documents as may shall be necessary or desirable in connection with to register the consummation Shares under the securities or "blue sky" laws of such jurisdictions as the Sponsor, on behalf of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as Trust, may be deem necessary or desirable;
(iv) to negotiate the registration of the Preferred Trust Securities under the Securities Act of 1933, as amendedterms of, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xii) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 investments underwriting agreements, purchase agreements or engage in other agreements relating to the initial public offering or any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of any future issuance 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" Shares in exchange for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or Sponsor shares;
(v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Trustees shall defend all claims execute 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, each of the Depositor and the Administrative Trustees, acting singularly or together, (anddeliver, in the each case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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 such certifications or reports required by the Depositor in furtherance Sarbanes-Oxley Act of 2002 from time to time as may be necessary xx xxxxxx xx the conduct of the following prior to business of the date of this Trust Agreement are hereby ratified and confirmed in all respects):Trust; and
(ivi) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 deliver, in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or each case on behalf of the Trust, such agreements, instruments, certificates and advise the Trustees of actions they must take documents, and to make filings with or representations on behalf of the Trust, and prepare for execution and filing any documents to the City of Chicago as may 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 in connection with the sale potential acquisition of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activitiesMacquarie District Energy Holdings LLC.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 1 contract
Samples: Trust Agreement (Macquarie Infrastructure CO Trust)
Authorization to Enter into Certain Transactions. 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to in exchange for the Underwriting AgreementSubordinated Notes;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement and the Remarketing Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xii) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment AccountAccount in the name of and under the exclusive control of the Property Trustee on behalf of the Securityholders;
(ii) the receipt of the DebenturesSubordinated Notes;
(iii) the collection and deposit deposit, upon receipt, in the Payment Account of interest, principal and any other payments made in respect of the DebenturesSubordinated Notes;
(iv) the distribution of amounts owed to the Securityholders from the Payment Account in respect of the Trust Securities in accordance with the terms of this Trust Agreement (funds in the Payment Account to be held uninvested until disbursed in accordance with this Trust Agreement);
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures Subordinated Notes to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust AgreementAgreement upon written direction by the Depositor to dissolve the Trust;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures Subordinated Notes under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee mayshall, subject to Article VIII hereof and its responsibilities pursuant to the Trust Indenture Act, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures Subordinated Notes subject to the rights of the Holders to institute proceedings directly pursuant to the terms of this Trust Agreement.
(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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 1 contract
Samples: Trust Agreement (PPL 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such agreements as may be necessary or desirable in connection with the consummation of the Underwriting AgreementAgreement (such execution to be by the Administrative Trustees or any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(vvi) the listing, if any, listing of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vivii) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(viiviii) the establishment of a record date for any registering transfers of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed Trust Securities in accordance with respect to the this Trust on behalf of the trustAgreement;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent as provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iii) and (v) below, ____________________Robert J. Reger, Jr., as authorized representative of the Trust), shall have txx Xxxxx) xxxxx xxxx 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust SecuritiesStates;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale prepare for filing 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 Preferred Trust issuance of any Securities ("Offer") and negotiate to file or cause the terms of an Underwriting Agreement Administrative Trustees to file thereafter with such exchange or the Nasdaq National Market such notifications and pricing agreement providing for the Offerdocuments as may be necessary from time to time to maintain such listing;
(iv) to prepare for filing by the Trust with the Commission and to execute a registration statement on Form 8-A relating to the registration of the Securities under Section 12(b) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), including any amendments thereto;
(v) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(vvi) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(vii) to take any other actions necessary or desirable to carry out any of the foregoing activities; and
(viii) to designate itself or an Affiliate to be the Transfer Agent and Registrar.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act of 1940, as amended, or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred 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 Section, Article VIII and in accordance with the following provisions (Ai) and (Bii), 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:
(Ai) As among the Trustees, the Administrative Trustees, acting singularly singly or togetherjointly, shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(iA) to acquire the issuance and Debentures with the proceeds of the sale of the Trust Securities pursuant Securities; provided, however, the Administrative Trustees shall cause legal title to all of the Underwriting AgreementDebentures to be vested in, and the Debentures to be held of record in the name of, the Property Trustee for the benefit of the Trust and the Securityholders;
(iiB) without to give the consent Depositor and the Property Trustee prompt written notice of the occurrence of any PersonSpecial Event (as defined in the Indenture) and to take any ministerial actions in connection therewith; provided, that the Administrative Trustees shall consult with the Depositor and the Property Trustee before taking or refraining to take any ministerial action in relation to a Special Event;
(C) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of (S) 316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions, and exchanges, and to issue relevant notices to the Securityholders as to such actions and applicable record dates;
(D) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 2.7(a)(ii)(E), the Property Trustee has the power to bring such Legal Action;
(E) to delegate to or otherwise engage employees and agents of the Trust (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services;
(F) to cause the Trust to enter into and to execute, deliver and perform on behalf of comply with the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture 's obligations under the Trust Indenture Act;
(vG) to give the listing, if any, certificate to the Property Trustee required by (S) 314(a)(4) of the Preferred Trust Securities upon Indenture Act, which certificate may be executed by any Administrative Trustee;
(H) to take all actions and perform such national securities exchange or exchanges or automated quotation system or systems duties as shall may be determined by the Depositor and the registration required of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents Administrative Trustees pursuant to the foregoing;
(vi) the appointment or removal terms of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ixI) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities Securityholders or to enable the Trust to effect the purposes for which the Trust was has been created;
(xJ) to execute take all action necessary to cause all applicable tax returns and deliver all documents or instrumentstax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, perform all duties and powers, and do all things for and on behalf of the Trust;
(K) to issue and sell the Trust in all matters Securities;
(L) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or incidental desirable in connection with the purposes and function of the Trust;
(M) to assist in the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(N) to assist in the 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 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;
(xiO) to send notices (other than notices of default) and other information regarding the extent provided Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(P) to appoint a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(Q) to register transfers of the Trust Securities in accordance with this Trust Agreement;
(R) in connection with the winding up of the affairs of and liquidation of the Trust Trust, to prepare, execute and file, together with the preparationProperty Trustee, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(S) to execute and deliver any closing certificates pursuant to the Underwriting Agreement and to make application for a taxpayer identification number for the Trust;
(T) 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
(xiiU) the taking of to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve give effect to the terms of this Trust Property Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(Bii) As among the Trustees, the Property Trustee shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following ministerial matters:
(iA) to engage in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Debentures are redeemed or mature;
(B) upon notice of distribution issued by the Administrative Trustees in accordance with the terms of this Trust Agreement, to engage in such ministerial activities as shall be necessary or appropriate to effect promptly the distribution pursuant to terms of this Trust Agreement of Debentures to Securityholders;
(C) subject to the terms hereof, exercise all of the rights, powers and privileges of a holder of the Debentures under the Indenture and, if a Debenture Event of Default occurs and is continuing, shall enforce for the benefit of, and subject to the rights of, the Securityholders, its rights as holder of the Debentures under the Indenture;
(D) take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement;
(E) take any Legal Action specifically required of the Property Trustee pursuant to the terms of this Trust Agreement which arises out of or in connection with an Event of Default or the Property Trustee's duties and obligations under this Trust Agreement, the Delaware Business Trust Act or the Trust Indenture Act;
(F) the establishment and maintenance of the Payment Account;
(G) the receipt of and holding of legal title to the Debentures as described herein;
(H) the establishment of the Payment Account;
(iiI) the receipt of the Debentures;
(iiiJ) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures and the holding of such amounts in the Payment Account;
(ivK) the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust AgreementSecurities;
(vL) the exercise of all of the rights, powers and privileges of a holder of the Debentures; (M) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iii) and (v) below, ____________________Robert J. Reger, Jr., as authorized representative of the Trust), shall Trxxx) xxxxx 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 States;
(iii) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the sale of Preferred Trust Securitiesconsummation thereof;
(iiiiv) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;; and
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 1 contract
Samples: Trust Agreement (Txu 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting Agreement;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's ’s valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xii) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" ” for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("“Offer"”) and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "“investment company" ” required to be registered under the Investment Company Act or classified other than as a "“grantor trust" ” for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and a Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iiiv) and (vvii) below, ____________________Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust), ) 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to prepare for filing by the Trust with the Commission and to execute a registration statement on Form 8-A including all amendments thereto;
(iii) to prepare and file with The New York Stock Exchange, Inc. and execute on behalf of the Trust a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Preferred Trust Securities to be listed on such exchange;
(iv) to determine the States states in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securitiesstates;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(ivv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(vvi) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of the Preferred Trust Securities ("Offer") and negotiate the terms of the Underwriting Agreement providing for the Offer; and
(vii) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred 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 2.7 and Article VIII VIII, and in accordance with the following provisions (Ai) and (Bii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Administrative Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Administrative Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following:
(Ai) As among the Trustees, the each Administrative TrusteesTrustee, acting singularly singly or togetherjointly, shall have the power, duty power and authority to act on behalf of the Trust with respect to the following matters:
(iA) the issuance and sale of the Trust Securities pursuant to in compliance with the Underwriting Selling Agency Agreement;
(iiB) without the consent of any Person, to cause the Trust to enter into into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, the Certificate Depositary Agreement and such other agreements or documents as may be necessary or desirable in connection with the consummation purposes and function of the Underwriting AgreementTrust;
(iiiC) to qualify the Trust to do business assisting in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amendedAct, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(vD) the listing, if any, of application for a taxpayer identification number for the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoingTrust;
(viE) the preparation of a registration statement and a prospectus in relation to the Preferred Securities, including any amendments thereto and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions subject to the registration requirements of the Securities Act;
(F) 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;
(G) the appointment or removal of a Paying Agent an authenticating agent and Transfer Agent and Securities Registrar in accordance with this Trust Agreement;
(viiH) to acquire as trust assets Debentures with the establishment of a record date for any proceeds of the purposes contemplated by Section 6.07 hereofsale of the Trust Securities;
(viiiI) to duly prepare and file all applicable tax returns and tax information reports that are required bring or defend, pay, collect, compromise, arbitrate, resort to be filed with respect to legal action or otherwise adjust claims or demands of or against the Trust on behalf of ("Legal Action") unless the trustProperty Trustee has the exclusive power to bring such Legal Action;
(ixJ) to cause the Trust to comply with its obligations under the Trust Indenture Act;
(K) to employ or otherwise engage employees and agents (who may be officers with titles) and managers, contractors, advisors and consultants and pay reasonable compensation for their services;
(L) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(M) to take all action that may be required to be taken by the Administrative Trustees hereunder or that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiiN) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve give effect to the terms of this Trust Property Agreement for the benefit of the Securityholders Holders (without consideration of the effect of any such action on any particular SecurityholderHolder).
(Bii) 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:
(iA) the establishment of the Payment Account;
(iiB) the receipt of the Debentures;
(iiiC) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(ivD) the distribution of amounts owed to the Securityholders Holders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(vE) the exercise of all of the rights, powers and privileges of a holder of the Debentures;
(F) engaging in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Debentures are redeemed or mature;
(G) taking all actions and performing such duties as may be specifically required of the Property Trustee pursuant to this Trust Agreement;
(H) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders Holders in accordance with the terms of this Trust Agreement;
(viI) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(viiJ) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; andTrust;
(viiiK) after an Event of Default, the taking of any ministerial action Legal 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).;
(aL) Subject to registering transfers of the Trust Securities in accordance with this Trust Agreement; and
(M) except as otherwise provided in this Section 2.07(a)(B2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c2.7(a)(i). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 transactions except as expressly provided herein or contemplated hereby. In particular, the Trustees, acting on behalf of the Trust, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, ; (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.set-
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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iii) and (v) below, ____________________Robert J. Reger, Jr., as authorized representative of the Trust), shall Trxxx) xxxxx 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 States;
(iii) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the sale of Preferred Trust Securitiesconsummation thereof;
(iiiiv) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;; and
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act of 1940, as amended, or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 1 contract
Samples: Trust Agreement (Enserch 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and a Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
Debentures in the Payment Account; (iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 1 contract
Samples: Trust Agreement (Allete 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 Section, Article VIII and in accordance with the following provisions (Ai) and (Bii), 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:
(Ai) As among the Trustees, the Administrative Trustees, acting singularly singly or togetherjointly, shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(iA) to acquire the issuance and Debentures with the proceeds of the sale of the Trust Securities pursuant Securities; provided, however, the Administrative Trustees shall cause legal title to all of the Underwriting AgreementDebentures to be vested in, and the Debentures to be held of record in the name of, the Property Trustee for the benefit of the Trust and the Securityholders;
(iiB) without to give the consent Depositor and the Property Trustee prompt written notice of the occurrence of any PersonSpecial Event (as defined in the Indenture) and to take any ministerial actions in connection therewith; provided, that the Administrative Trustees shall consult with the Depositor and the Property Trustee before taking or refraining to take any ministerial action in relation to a Special Event;
(C) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of (S) 316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions, and exchanges, and to issue relevant notices to the Securityholders as to such actions and applicable record dates;
(D) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 2.7(a)(ii)(E), the Property Trustee has the power to bring such Legal Action;
(E) to delegate to or otherwise engage employees and agents of the Trust (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services;
(F) to cause the Trust to enter into and to execute, deliver and perform on behalf of comply with the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture 's obligations under the Trust Indenture Act;
(vG) to give the listing, if any, certificate to the Property Trustee required by (S) 314(a)(4) of the Preferred Trust Securities upon Indenture Act, which certificate may be executed by any Administrative Trustee;
(H) to take all actions and perform such national securities exchange or exchanges or automated quotation system or systems duties as shall may be determined by the Depositor and the registration required of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents Administrative Trustees pursuant to the foregoing;
(vi) the appointment or removal terms of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ixI) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities Securityholders or to enable the Trust to effect the purposes for which the Trust was has been created;
(xJ) to execute take all action necessary to cause all applicable tax returns and deliver all documents or instrumentstax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, perform all duties and powers, and do all things for and on behalf of the Trust;
(K) to issue and sell the Trust in all matters Securities;
(L) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or incidental desirable in connection with the purposes and function of the Trust;
(M) to assist in the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(N) to assist in the 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 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;
(xiO) to send notices (other than notices of default) and other information regarding the extent provided Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(P) to appoint a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(Q) to register transfers of the Trust Securities in accordance with this Trust Agreement;
(R) in connection with the winding up of the affairs of and liquidation of the Trust Trust, to prepare, execute and the preparation, execution and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware;
(S) to execute and deliver any closing certificates pursuant to the Underwriting Agreement and to make application for a taxpayer identification number for the Trust;
(T) 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
(xiiU) the taking of to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve give effect to the terms of this Trust Property Agreement for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(Bii) As among the Trustees, the Property Trustee shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following ministerial matters:
(iA) to engage in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Debentures are redeemed or mature;
(B) upon notice of distribution issued by the Administrative Trustees in accordance with the terms of this Trust Agreement, to engage in such ministerial activities as shall be necessary or appropriate to effect promptly the distribution pursuant to terms of this Trust Agreement of Debentures to Securityholders;
(C) subject to the terms hereof, exercise all of the rights, powers and privileges of a holder of the Debentures under the Indenture and, if a Debenture Event of Default occurs and is continuing, shall enforce for the benefit of, and subject to the rights of, the Securityholders, its rights as holder of the Debentures under the Indenture;
(D) take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement;
(E) take any Legal Action specifically required of the Property Trustee pursuant to the terms of this Trust Agreement which arises out of or in connection with an Event of Default or the Property Trustee's duties and obligations under this Trust Agreement, the Delaware Business Trust Act or the Trust Indenture Act;
(F) the establishment and maintenance of the Payment Account;
(G) the receipt of and holding of legal title to the Debentures as described herein;
(H) the establishment of the Payment Account;
(iiI) the receipt of the Debentures;
(iiiJ) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures and the holding of such amounts in the Payment Account;
(ivK) the distribution through the Paying Agent of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust AgreementSecurities;
(vL) the exercise of all of the rights, powers and privileges of a holder of the Debentures; (M) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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 investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust Capital Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Capital Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iii) and (v) below, ____________________Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust), ) 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Capital Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Capital Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust SecuritiesStates;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(iv) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Capital Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer; and
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust 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 Section, Article VIII and in accordance with the following provisions (Ai) and (Bii), 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 including, without limitation, the following:
(Ai) As among the Trustees, the Administrative Trustees, acting singularly singly or togetherjointly, shall have the exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(iA) to acquire the issuance and Debentures with the proceeds of the sale of the Trust Securities pursuant Securities; provided, however, the Administrative Trustees shall cause legal title to all of the Underwriting AgreementDebentures to be vested in, and the Debentures to be held of record in the name of, the Property Trustee for the benefit of the Trust and the Securityholders;
(iiB) without to give the consent Depositor and the Property Trustee prompt written notice of the occurrence of any PersonSpecial Event (as defined in the Indenture) and to take any ministerial actions in connection therewith; provided, that the Administrative Trustees shall consult with the Depositor and the Property Trustee before taking or refraining to take any ministerial action in relation to a Special Event;
(C) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of (S)316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Securityholders as to such actions and applicable record dates;
(D) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 2.7(a)(ii)(E), the Property Trustee has the power to bring such Legal Action;
(E) to delegate to or otherwise engage employees and agents of the Trust (who may be designated as officers with titles) and managers, contractors, advisors and consultants and pay reasonable compensation for such services;
(F) to cause the Trust to enter into and to execute, deliver and perform on behalf of comply with the Trust, such agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture 's obligations under the Trust Indenture Act;
(vG) to give the listing, if any, certificate to the Property Trustee required by (S) 314(a)(4) of the Preferred Trust Securities upon Indenture Act, which certificate may be executed by any Administrative Trustee;
(H) to take all actions and perform such national securities exchange or exchanges or automated quotation system or systems duties as shall may be determined by the Depositor and the registration required of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents Administrative Trustees pursuant to the foregoing;
(vi) the appointment or removal terms of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ixI) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities Securityholders or to enable the Trust to effect the purposes for which the Trust was has been created;
(xJ) to execute take all action necessary to cause all applicable tax returns and deliver all documents or instrumentstax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, perform all duties and powers, and do all things for and on behalf of the Trust;
(K) to issue and sell the Trust in all matters Securities;
(L) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or incidental desirable in connection with the purposes and function of the Trust;
(M) to assist in the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(N) to assist in the 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 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;
(xiO) to send notices (other than notices of default) and other information regarding the extent provided Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(P) to appoint a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement;
(Q) to register transfers of the Trust Securities in accordance with this Trust Agreement;
(R) in connection with the winding up of the affairs of and liquidation of the Trust Trust, to prepare, execute and the preparation, execution and filing of file the certificate of cancellation with the Secretary of State of the State of Delaware;
(S) to execute and deliver any closing certificates pursuant to the Underwriting Agreement and to make application for a taxpayer identification number for the Trust;
(T) 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
(xiiU) the taking of to take any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust 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 exclusive power, duty and authority to act on behalf of the Trust with respect to the following matters:
(A) to engage in such ministerial activities as shall be necessary or appropriate to effect promptly the redemption of the Trust Securities to the extent the Debentures are redeemed or mature;
(B) upon notice of distribution issued by the Administrative Trustees in accordance with the terms of this Trust Agreement, to engage in such ministerial activities as shall be necessary or appropriate to effect promptly the distribution pursuant to terms of this Trust Agreement of Debentures to Securityholders;
(C) subject to the terms hereof, to exercise all of the rights, powers and privileges of a holder of the Debentures under the Indenture and, if a Debenture Event of Default occurs and is continuing, shall enforce for the benefit of, and subject to the rights of, the Securityholders, its rights as holder of the Debentures under the Indenture;
(D) to take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement;
(E) to take any Legal Action specifically required of the Property Trustee pursuant to the terms of this Trust Agreement which arises out of or in connection with an Event of Default or the Property Trustee's duties and obligations under this Trust Agreement, the Delaware Business Trust Act or the Trust Indenture Act;
(F) to establish and maintain the Payment Account;
(G) to receive and hold legal title to the Debentures as described herein;
(H) to collect interest, principal and any other payments made in respect of the Debentures and the holding of such amounts in the Payment Account;
(I) to distribute through the Paying Agent amounts owed to the Securityholders in respect of the Trust Securities;
(J) to exercise all of the rights, powers and privileges of a holder of the Debentures;
(K) to send notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement;
(L) to distribute the Trust Property in accordance with the terms of this Trust Agreement;
(M) to the extent provided in this Trust Agreement, to wind up the affairs of and liquidate the Trust and to execute the certificate of cancellation with the Secretary of State of the State of Delaware;
(N) after an Event of Default (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), to take any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the Debentures;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viiiO) the taking of any ministerial action incidental to the foregoing except as the Property Trustee may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(a) Subject to otherwise provided in this Section 2.07(a)(B2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c2.7(a)(i). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-set- off or otherwise dispose of any of the Trust Property or interests therein, including to 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 be classified as an association taxable as a "corporation or as other than 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) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. , (vi) issue any securities other than the Trust Securities, (vii) have any power to, or agree to any action by the Depositor that would, vary the investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of the Trust or of the Securityholders or (viii) on or after the date hereof, enter into any contract or agreement for or on behalf of the Trust (other than the Certificate Depository Agreement or any other depositary agreement or any agreement with any securities exchange or automated quotation system) that does not expressly provide that the Holders of the Preferred Securities, in their capacities as such, have limited liability (in accordance with the provisions of the Delaware Business Trust Act) for the liabilities and obligations of the Trust, which express provision may be in the following form, "The Holders of the Preferred Securities, in their capacities as such, shall not be personally liable for any liabilities or obligations of the Trust arising out of this Agreement, and the parties hereto hereby agree that the Holders of the Preferred 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 Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the Securityholders in their capacity as Securityholders. All actions taken by the Administrative Trustees shall be taken outside of the State of Texas.
(c) In connection with the issue and sale of the Preferred Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly or together, (and, in the case of (i), (iii) and (v) below, ____________________, as authorized representative of the Trust), 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 or the Trust in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respectsrespects without any further act, vote or approval of any Person notwithstanding any other provision of this Agreement, the Delaware Business Trust Act or other applicable law, rule or regulation):
(i) to prepare for the preparation and filing by the Trust with the Commission and to execute and file 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, the Debentures and the Guarantee, and certain other securities which could have been issued in lieu of the Preferred Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine 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 to do the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the advice to the Trustees of actions they must take on behalf of the Trust, and prepare 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 in connection with the sale of Preferred Trust Securitiesstates;
(iii) to select if deemed desirable by the investment banker or bankers to act as underwriters with respect to Depositor, the offer and sale preparation for filing by the Trust and execution on behalf of Preferred the Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Preferred Securities and pricing agreement providing for the Offerfiling with such exchange or self-regulatory organization such notifications and documents as may be necessary from time to time to maintain such listing;
(iv) to execute if required, the preparation for filing by the Trust with the Commission and deliver the execution on behalf of the Trust of a registration statement on Form 8-A relating to the Underwriting Agreement and such other agreements as may be necessary registration of the Preferred Securities under Section 12(b) or desirable in connection with 12(g) of the consummation thereofExchange Act, including any amendments thereto;
(v) to take the negotiation of the terms of, the execution and delivery of, and the performance of its obligations under, 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 Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act 1940 Act, or to be classified as an association taxable as a corporation or as other than as a "grantor trust" trust for United States Federal federal income tax purposes and so that the Debentures will be treated as indebtedness of the Debenture Issuer Depositor for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the any Administrative Trustees Trustee determines in its discretion to be necessary or desirable for such purposes, as long as such action does not materially adversely affect in any material respect the interests of the Holders of the Preferred 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(vvi) the listing, if any, listing of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vivii) the appointment or removal of a Paying Agent and Transfer Agent and Registrar in accordance with this Trust Agreement;
(viiviii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(ix) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiixi) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iii) and (v) below, ____________________Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust), ) 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 States;
(iii) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the sale of Preferred Trust Securitiesconsummation thereof;
(iiiiv) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;; and
(v) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 1 contract
Samples: Trust Agreement (Txu Gas Capital 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 Article VIII and in accordance with the following provisions (A) and (B), 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:
(A) As among the Trustees, the Administrative Trustees, acting singularly singly or together, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the Underwriting AgreementSecurities;
(ii) without the consent of any Person, to cause the Trust to enter into and to execute, deliver and perform on behalf of the Trust, the Expense Agreement, and such other agreements as may be necessary or desirable in connection with the consummation of the Underwriting Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon such national securities exchange or exchanges or automated quotation system or systems as shall be determined by the Depositor and the registration of the Preferred Trust Securities under the Exchange Act, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and a Transfer Agent and Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and tax information reports that are required to be filed with respect to the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Trust Securities or to enable the Trust to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of Delaware; and
(xiix) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder).
(B) 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:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of interest, principal and any other payments made in respect of the DebenturesDebentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and
(viii) 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 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).
(a) . Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section 2.07(c). The Property Trustee shall have the power and authority to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture, subject to the terms of this Trust Agreement, Indenture and, if an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of Holders of the Trust Securities, in its discretion, proceed to protect and enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of this Trust Agreement.
(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, Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, 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" for United States Federal federal income tax purposespurposes and not as an association taxable as a corporation, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The 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 Trust Securities, each of the Depositor and the Administrative Trustees, acting singularly singly or together, (and, in the case of (i), (iiiv) and (vvii) below, ____________________Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust), ) 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) to prepare for filing by the Trust with the Commission and to execute and file a registration statement on Form S-3 in relation to the Preferred Trust Securities, including any amendments thereto and to take any action necessary or desirable to sell the Preferred Trust Securities in a transaction or series of transactions pursuant thereto;
(ii) to prepare for filing by the Trust with the Commission and to execute a registration statement on Form 8-A including all amendments thereto;
(iii) to prepare and file with The New York Stock Exchange, Inc. and execute on behalf of the Trust a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Preferred Trust Securities to be listed on such Exchange;
(iv) to determine the States states in which to take appropriate action to qualify or register for sale all or part of the Preferred Trust Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and 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 in connection with the sale of Preferred Trust Securitiesstates;
(iii) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of Preferred Trust Securities ("Offer") and negotiate the terms of an Underwriting Agreement and pricing agreement providing for the Offer;
(ivv) to execute and deliver on behalf of the Trust the Underwriting Agreement and such other agreements as may be necessary or desirable in connection with the consummation thereof;
(vvi) to select the investment banker or bankers to act as underwriters with respect to the offer and sale by the Trust of the Preferred Trust Securities ("Offer") and negotiate the terms of the Underwriting Agreement providing for the Offer; and
(vii) to take any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are hereby authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act or classified other than as a "grantor trust" for United States Federal federal income tax purposes and not as an association taxable as a corporation and so that the Debentures will be treated as indebtedness of the Debenture Issuer for United States Federal federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust (as amended or restated from time to time, the "Certificate of Trust Trust") or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its 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 Preferred Trust Securities.
Appears in 1 contract
Samples: Trust Agreement (Txu Capital Iv)
