Voting Rights of Trust Preferred Securities. (a) Except as provided under Sections 2.6, 6.1(b) and this Article VIII and as otherwise required by the Business Trust Act, the Trust Indenture Act and other applicable law, the Holders of the Trust Preferred Securities will have no voting rights. (b) Subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in Section 8.4(d) below, the Holders of a Majority in liquidation amount of the Trust Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or direct the exercise of any trust or power conferred upon the Property Trustee under this Trust Agreement, including the right to direct the Property Trustee, as Holder of the Partnership Preferred Securities, to (i) exercise the remedies available to it under the Agreement of Limited Partnership as a Holder of the Partnership Preferred Securities, including the right to direct the Special Representative of the Partnership as elected by the Holders of the Partnership Preferred Securities in accordance with the Agreement of Limited Partnership to enforce, to the fullest extent permitted by law, (A) the Partnership's creditors rights and other rights with respect to the Affiliate Investment Instruments and any Investment Guarantees, (B) the rights of the holders of the Partnership Preferred Securities under the Partnership Guarantee, and (C) the rights of the holders of the Partnership Preferred Securities to receive distributions (if and to the extent such distributions have been declared out of funds legally available therefor by the General Partner in its sole discretion) on the Partnership Preferred Securities or (ii) consent to any amendment, modification, or termination of the Agreement of Limited Partnership or the Partnership Preferred Securities where such consent shall be required; provided, however, that where a consent or action under the Agreement of Limited Partnership would require the consent or act of the Holders of more than a majority of the aggregate liquidation amount of Partnership Preferred Securities affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount of the Trust Preferred Securities which is at least equal to the percentage required under the Agreement of Limited Partnership may direct the Property Trustee to give such consent or take such action on behalf of the Trust. (c) If the Property Trustee fails to enforce its rights under the Partnership Preferred Securities after a Holder of record of Trust Preferred Securities has made a written request, such Holder of record of Trust Preferred Securities may, to the fullest extent permitted by law, directly institute a legal proceeding against the General Partner or the Special Representative, to enforce the Property Trustee's rights under the Partnership Preferred Securities without first instituting any legal proceeding against the Property Trustee, the Trust or any other Person. Notwithstanding the foregoing, for so long as the Property Trustee is the holder of any Partnership Preferred Securities, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of an Investment Affiliate to make any required payment when due on any 53 Affiliate Investment Instrument and the failure of the Company to make any required payment with respect thereto when due on any Investment Guarantee, then a Holder of Trust Preferred Securities may, on behalf of the Partnership, directly institute a proceeding against such Investment Affiliate with respect to such Affiliate Investment Instrument or against the Company with respect to any such Investment Guarantee, in each case for enforcement of payment. (d) The Property Trustee shall notify all Holders of the Trust Preferred Securities of any notice of any Partnership Enforcement Event received from the General Partner with respect to the Partnership Preferred Securities and the Affiliate Investment Instruments. Such notice shall state that such Partnership Enforcement Event also constitutes a Trust Enforcement Event. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 8.4(b)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that as a result of such action, the Trust will not be classified as an association or a publicly traded partnership taxable as a corporation for United States federal income tax purposes and each Holder will continue to be treated as owning an undivided beneficial ownership interest in the Partnership Preferred Securities. (e) In the event the consent of the Property Trustee, as the Holder of the Partnership Preferred Securities, is required under the Agreement of Limited Partnership with respect to any amendment, modification or termination of the Agreement of Limited Partnership, the Property Trustee shall request the direction of the Holders of the Trust Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a Majority in liquidation amount of the Trust Securities voting together as a single class; provided, however, that where a consent under the Agreement of Limited Partnership would require the consent of the Holders of more than a majority of the aggregate principal amount of the Partnership Preferred Securities, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount of the Trust Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Trust Securities unless the Property Trustee has obtained an opinion of tax counsel to the effect that such action is not inconsistent with the Trust being classified as a grantor trust for United States federal income tax purposes. (f) A waiver of a Partnership Enforcement Event with respect to the Partnership Preferred Securities will constitute a waiver of the corresponding Trust Enforcement Event. (g) Any required approval or direction of Holders of Trust Preferred Securities may be given at a separate meeting of Holders of Trust Preferred Securities convened for such purpose, at a meeting of all of the Holders of Trust Securities or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Trust Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Trust Preferred Securities. Each such notice will include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consents. (h) No vote or consent of the Holders of Trust Preferred Securities will be required for the Trust to redeem and cancel Trust Preferred Securities or distribute Partnership Preferred Securities in accordance with the Trust Agreement. (i) Notwithstanding that Holders of Trust Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Securities that are beneficially owned at such time by the Company or any entity directly or indirectly controlled by, or under direct or indirect common control with, the Company, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Trust Securities were not outstanding, provided, however that persons otherwise eligible to vote to whom the Company or any of its subsidiaries have pledged Trust Preferred Securities may vote or consent with respect to such pledged Trust Preferred Securities under any of the circumstances described herein. (j) Holders of the Trust Preferred Securities will have no rights to appoint or remove the Regular Trustees, who may be appointed, removed or replaced solely by the Company, as the Holder of all of the Trust Common Securities.
Appears in 1 contract
Voting Rights of Trust Preferred Securities. (a) Except as provided under Sections 2.6, 6.1(b) Section 11.1 and this Article VIII 7 and as otherwise required by the Business Delaware Statutory Trust Act, the Trust Indenture Act and other applicable law, the Holders of the Trust Preferred Securities will shall have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in Section 8.4(d7.5(d) below, the Holders of a Majority in liquidation amount Liquidation Amount of the Trust Preferred Securities voting separately as a class have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or to direct the exercise of any trust or power conferred upon the Property Trustee under this the Trust Agreement, including the right to direct the Property Trustee, as Holder of the Partnership Preferred SecuritiesDebentures, to (i) exercise the remedies available to it under the Agreement of Limited Partnership Indenture as a Holder of the Partnership Preferred Securities, including the right to direct the Special Representative of the Partnership as elected by the Holders of the Partnership Preferred Securities in accordance with the Agreement of Limited Partnership to enforce, to the fullest extent permitted by law, (A) the Partnership's creditors rights and other rights with respect to the Affiliate Investment Instruments and any Investment Guarantees, (B) the rights of the holders of the Partnership Preferred Securities under the Partnership Guarantee, and (C) the rights of the holders of the Partnership Preferred Securities to receive distributions (if and to the extent such distributions have been declared out of funds legally available therefor by the General Partner in its sole discretion) on the Partnership Preferred Securities or Debentures; (ii) consent to any amendment, modification, amendment or termination modification of the Agreement of Limited Partnership Indenture or the Partnership Preferred Securities Debentures where such consent shall be requiredrequired (iii) waive any past default and its consequences that is waivable under Section 508 of the Indenture or (iv) cancel an acceleration of the principal of the Debentures; provided, however, that if an Indenture Event of Default has occurred and is continuing, then the Holders of 33% of the aggregate Liquidation Amount of the Trust Preferred Securities may direct the Property Trustee to declare the principal of and interest on the Debentures due and payable; provided, further, that where a consent or action under the Agreement of Limited Partnership Indenture would require the consent or act of the Holders of more than a majority of the aggregate liquidation principal amount of Partnership Preferred Securities Debentures affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount Liquidation Amount of the Trust Preferred Securities which is at least equal to the percentage required under the Agreement of Limited Partnership Indenture may direct the Property Trustee to give such consent or to take such action on behalf provided, further, that (subject to the provisions of Section 3.9) the TrustProperty Trustee shall have the right to decline to follow any such direction if the Property Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders of Trust Preferred Securities not taking part in such direction or if the Property Trustee, being advised by counsel, determines that the action or proceeding so directed may not lawfully be taken or if the Property Trustee, in good faith, by its board of directors or trustees, executive committee, or a trust committee of directors or trustees, and/or Responsible Officers, shall determine that the action or proceeding so directed would involve the Property Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights under the Partnership Preferred Securities Debentures after a Holder of record of Trust Preferred Securities has made a written request, such Holder of record of Trust Preferred Securities may, to the fullest extent permitted by applicable law, directly institute a legal proceeding directly against the General Partner or the Special Representative, Debenture Issuer to enforce the Property Trustee's ’s rights under the Partnership Preferred Securities Indenture without first instituting any legal proceeding against the Property Trustee, the Trust Trustee or any other Person. Notwithstanding the foregoing, for so long as the Property Trustee is the holder of any Partnership Preferred SecuritiesIn addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of an Investment Affiliate the Debenture Issuer to make any interest, principal or other required payment payments when due on any 53 Affiliate Investment Instrument and under the failure of the Company to make any required payment with respect thereto when due on any Investment GuaranteeIndenture, then a Holder of Trust Preferred Securities may, on behalf of the Partnership, may directly institute a proceeding against such Investment Affiliate with respect to such Affiliate Investment Instrument or Direct Action against the Company with respect to any such Investment Guarantee, Debenture Issuer on or after the respective due date specified in each case for enforcement of paymentthe Debentures.
(d) The Subject to Section 2.7, the Property Trustee shall notify all Holders of the Trust Preferred Securities of any notice of any Partnership Enforcement Indenture Event of Default received from the General Partner Debenture Issuer with respect to the Partnership Preferred Securities and the Affiliate Investment InstrumentsDebentures. Such notice shall state that such Partnership Enforcement Indenture Event of Default also constitutes a Trust Enforcement Event. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 8.4(b)(iclauses 7.5(b)(i) and (ii) above unless the Property Trustee has obtained at the expense of the Sponsor an opinion of independent tax counsel to the effect that the Trust will not fail to be classified as a grantor trust for United States federal income tax purposes as a result of such action, the Trust will not be classified as an association or a publicly traded partnership taxable as a corporation for United States federal income tax purposes and each Holder will continue to be treated as owning an undivided beneficial ownership interest in the Partnership Preferred SecuritiesDebentures.
(e) In the event the consent of the Property Trustee, as the Holder of the Partnership Preferred SecuritiesDebentures, is required under the Agreement of Limited Partnership Indenture with respect to any amendment, amendment or modification or termination of the Agreement of Limited PartnershipIndenture, the Property Trustee shall request the direction of the Holders of the Trust Securities with respect to such amendment, amendment or modification or termination and shall vote with respect to such amendment, amendment or modification or termination as directed by not less than a Majority in liquidation amount Liquidation Amount of the Trust Securities voting together as a single class; provided, however, that where a consent under the Agreement of Limited Partnership Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the Partnership Preferred SecuritiesDebentures, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount Liquidation Amount of the Trust Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Trust Securities unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that such action is not inconsistent with the Trust being will not be classified as other than a grantor trust for United States federal income tax purposespurposes as a result of such action, and each Holder will be treated as owning an undivided beneficial interest in the Debentures.
(f) A waiver of a Partnership Enforcement an Indenture Event of Default with respect to the Partnership Preferred Securities Debentures will constitute a waiver of the corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of Trust Preferred Securities may be given at a separate meeting of Holders of Trust Preferred Securities convened for such purpose, at a meeting of all of the Holders of Trust Securities or pursuant to written consent. The Regular Administrative Trustees will cause a notice of any meeting at which Holders of Trust Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, vote to be mailed to each Holder of record of Trust Preferred Securities. Each such notice will include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consentsproxies.
(h) No vote or consent of the Holders of Trust Preferred Securities will shall be required for the Trust to redeem and cancel Trust Preferred Securities or distribute Partnership Preferred Securities Debentures in accordance with this Trust Agreement and the Trust Agreementterms of the Securities.
(i) Notwithstanding that Holders of Trust Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Securities that are beneficially owned at such time by the Company Debenture Issuer, any Administrative Trustee or any entity directly or indirectly controlled by, or under direct or indirect common control with, the CompanyDebenture Issuer or any Administrative Trustee, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Trust Securities were not outstanding, ; provided, however however, that persons otherwise eligible to vote to whom the Company Debenture Issuer or any of its subsidiaries have pledged Trust Preferred Securities may vote or consent with respect to such pledged Trust Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Trust Preferred Securities will shall have no rights to appoint or remove the Regular Trustees, who may be appointed, removed or replaced solely by the CompanyCommon Securities Holder.
(k) Subject to the rights of the Holders of a Majority in Liquidation Amount of the Common Securities to appoint or remove Administrative Trustees as provided in Section 6.6(a)(iii), as if an Indenture Event of Default has occurred and is continuing, the Holder of all Trustees may be removed at such time only by a Majority in Liquidation Amount of the Trust Common Preferred Securities.
Appears in 1 contract
Voting Rights of Trust Preferred Securities. (a) Except as provided under Sections 2.6, 6.1(b) Section 11.1 and this Article VIII 7 and as otherwise required by the Business Trust Act, the Trust Indenture Act and other applicable law, the Holders of the Trust Preferred Securities will shall have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in Section 8.4(d7.5(d) below, the Holders of a Majority in liquidation amount Liquidation Amount of the Trust Preferred Securities voting separately as a class have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or to direct the exercise of any trust or power conferred upon the Property Trustee under this the Trust Agreement, including the right to direct the Property Trustee, as Holder of the Partnership Preferred SecuritiesDebentures, to (i) exercise the remedies available to it under the Agreement of Limited Partnership Indenture as a Holder of the Partnership Preferred Securities, including the right to direct the Special Representative of the Partnership as elected by the Holders of the Partnership Preferred Securities in accordance with the Agreement of Limited Partnership to enforce, to the fullest extent permitted by law, (A) the Partnership's creditors rights and other rights with respect to the Affiliate Investment Instruments and any Investment Guarantees, (B) the rights of the holders of the Partnership Preferred Securities under the Partnership Guarantee, and (C) the rights of the holders of the Partnership Preferred Securities to receive distributions (if and to the extent such distributions have been declared out of funds legally available therefor by the General Partner in its sole discretion) on the Partnership Preferred Securities or Debentures; (ii) consent to any amendment, modification, amendment or termination modification of the Agreement of Limited Partnership Indenture or the Partnership Preferred Securities Debentures where such consent shall be requiredrequired (iii) waive any past default and its consequences that is waiveable under Section 6.6 of the Indenture or (iv) cancel an acceleration of the principal of the Debentures; provided, however, that if an Indenture Event of Default has occurred and is continuing, then the Holders of 33% of the aggregate Liquidation Amount of the Trust Preferred Securities may direct the Property Trustee to declare the principal of and interest on the Debentures due and payable; provided, further, that where a consent or action under the Agreement of Limited Partnership Indenture would require the consent or act of the Holders of more than a majority of the aggregate liquidation principal amount of Partnership Preferred Securities Debentures affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount Liquidation Amount of the Trust Preferred Securities which is at least equal to the percentage required under the Agreement of Limited Partnership Indenture may direct the Property Trustee to give such consent or to take such action; provided, further, that (subject to the provisions of Section 3.9) the Property Trustee shall have the right to decline to follow any such direction if the Property Trustee shall determine that the action on behalf so directed would be unjustly prejudicial to the Holders of Trust Preferred Securities not taking part in such direction or if the TrustProperty Trustee, being advised by counsel, determines that the action or proceeding so directed may not lawfully be taken or if the Property Trustee, in good faith, by its board of directors or trustees, executive committee, or a trust committee of directors or trustees, and/or Responsible Officers, shall determine that the action or proceeding so directed would involve the Property Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights under the Partnership Preferred Securities Debentures after a Holder of record of Trust Preferred Securities has made a written request, such Holder of record of Trust Preferred Securities may, to the fullest extent permitted by applicable law, directly institute a legal proceeding directly against the General Partner or the Special Representative, Debenture Issuer to enforce the Property Trustee's rights under the Partnership Preferred Securities Indenture without first instituting any legal proceeding against the Property Trustee, the Trust Trustee or any other Person. Notwithstanding the foregoing, for so long as the Property Trustee is the holder of any Partnership Preferred SecuritiesIn addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of an Investment Affiliate the Debenture Issuer to make any interest, principal or other required payment payments when due on any 53 Affiliate Investment Instrument and under the failure of the Company to make any required payment with respect thereto when due on any Investment GuaranteeIndenture, then a Holder of Trust Preferred Securities may, on behalf of the Partnership, may directly institute a proceeding against such Investment Affiliate with respect to such Affiliate Investment Instrument or Direct Action against the Company with respect to any such Investment Guarantee, Debenture Issuer on or after the respective due date specified in each case for enforcement of paymentthe Debentures.
(d) The Subject to Section 2.7, the Property Trustee shall notify all Holders of the Trust Preferred Securities of any notice of any Partnership Enforcement Indenture Event of Default received from the General Partner Debenture Issuer with respect to the Partnership Preferred Securities and the Affiliate Investment InstrumentsDebentures. Such notice shall state that such Partnership Enforcement Indenture Event of Default also constitutes a Trust Enforcement Event. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 8.4(b)(iclauses 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not fail to be classified as a grantor trust for United States federal income tax purposes as a result of such action, the Trust will not be classified as an association or a publicly traded partnership taxable as a corporation for United States federal income tax purposes and each Holder will continue to be treated as owning an undivided beneficial ownership interest in the Partnership Preferred SecuritiesDebentures.
(e) In the event the consent of the Property Trustee, as the Holder of the Partnership Preferred SecuritiesDebentures, is required under the Agreement of Limited Partnership Indenture with respect to any amendment, amendment or modification or termination of the Agreement of Limited PartnershipIndenture, the Property Trustee shall request the direction of the Holders of the Trust Securities with respect to such amendment, amendment or modification or termination and shall vote with respect to such amendment, amendment or modification or termination as directed by not less than a Majority in liquidation amount Liquidation Amount of the Trust Securities voting together as a single class; provided, however, that where a consent under the Agreement of Limited Partnership Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the Partnership Preferred SecuritiesDebentures, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount Liquidation Amount of the Trust Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Trust Securities unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that such action is not inconsistent with the Trust being will not be classified as other than a grantor trust for United States federal income tax purposespurposes as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Debentures.
(f) A waiver of a Partnership Enforcement an Indenture Event of Default with respect to the Partnership Preferred Securities Debentures will constitute a waiver of the corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of Trust Preferred Securities may be given at a separate meeting of Holders of Trust Preferred Securities convened for such purpose, at a meeting of all both the Holders of Common Securities and the Holders of Trust Preferred Securities or pursuant to written consent. The Regular Administrative Trustees will cause a notice of any meeting at which Holders of Trust Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, vote to be mailed to each Holder of record of Trust Preferred Securities. Each such notice will include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consentsproxies.
(h) No vote or consent of the Holders of Trust Preferred Securities will shall be required for the Trust to redeem and cancel Trust Preferred Securities or distribute Partnership Preferred Securities Debentures in accordance with this Trust Agreement and the Trust Agreementterms of the Securities.
(i) Notwithstanding that Holders of Trust Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Securities that are beneficially owned at such time by the Company Debenture Issuer, any Administrative Trustee or any entity directly or indirectly controlled by, or under direct or indirect common control with, the CompanyDebenture Issuer or any Administrative Trustee, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Trust Securities were not outstanding, ; provided, however however, that persons otherwise eligible to vote to whom the Company Debenture Issuer or any of its subsidiaries have pledged Trust Preferred Securities may vote or consent with respect to such pledged Trust Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Trust Preferred Securities will shall have no rights to appoint or remove the Regular Trustees, who may be appointed, removed or replaced solely by the CompanyCommon Securities Holder.
(k) Subject to the rights of the Holders of a Majority in Liquidation Amount of the Common Securities to appoint or remove Administrative Trustees as provided in Section 6.6(a)(iii), as if an Indenture Event of Default has occurred and is continuing, the Holder of all Trustees may be removed at such time only by a Majority in Liquidation Amount of the Trust Common Preferred Securities.
Appears in 1 contract
Samples: Trust Agreement (Markel Corp)
Voting Rights of Trust Preferred Securities. (a) Except as provided under Sections 2.6, 6.1(b) Section 11.1 and this Article VIII 7 and as otherwise required by the Business Trust Act, the Trust Indenture Act and other applicable law, the Holders of the Trust Preferred Securities will shall have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in Section 8.4(d7.5(d) below, the Holders of a Majority in liquidation amount Liquidation Amount of the Trust Preferred Securities voting separately as a class have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or to direct the exercise of any trust or power conferred upon the Property Trustee under this the Trust Agreement, including the right to direct the Property Trustee, as Holder of the Partnership Preferred SecuritiesJunior Subordinated Notes, to (i) exercise the remedies available to it under the Agreement of Limited Partnership Indenture as a Holder of the Partnership Preferred Securities, including the right to direct the Special Representative of the Partnership as elected by the Holders of the Partnership Preferred Securities in accordance with the Agreement of Limited Partnership to enforce, to the fullest extent permitted by law, (A) the Partnership's creditors rights and other rights with respect to the Affiliate Investment Instruments and any Investment Guarantees, (B) the rights of the holders of the Partnership Preferred Securities under the Partnership Guarantee, and (C) the rights of the holders of the Partnership Preferred Securities to receive distributions (if and to the extent such distributions have been declared out of funds legally available therefor by the General Partner in its sole discretion) on the Partnership Preferred Securities or Junior Subordinated Notes; (ii) consent to any amendment, modification, amendment or termination modification of the Agreement of Limited Partnership Indenture or the Partnership Preferred Securities Junior Subordinated Notes where such consent shall be required; (iii) waive any past default and its consequences that is waivable under Section 513 of the Indenture; or (iv) cancel an acceleration of the principal of the Junior Subordinated Notes; provided, however, that if an Indenture Event of Default has occurred and is continuing, then the Holders of 25% of the aggregate Liquidation Amount of the Trust Preferred Securities may direct the Property Trustee to declare the principal of and interest on the Junior Subordinated Notes due and payable; provided, further, that where a consent or action under the Agreement of Limited Partnership Indenture would require the consent or act of the Holders of more than a majority of the aggregate liquidation principal amount of Partnership Preferred Securities Junior Subordinated Notes affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount Liquidation Amount of the Trust Preferred Securities which is at least equal to the percentage required under the Agreement of Limited Partnership Indenture may direct the Property Trustee to give such consent or to take such action on behalf provided, further, that (subject to the provisions of Section 3.9) the TrustProperty Trustee shall have the right to decline to follow any such direction if the Property Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders of Trust Preferred Securities not taking part in such direction or if the Property Trustee, being advised by counsel, determines that the action or proceeding so directed may not lawfully be taken or if the Property Trustee, in good faith, by its board of directors or trustees, executive committee, or a trust committee of directors or trustees, and/or Responsible Officers, shall determine that the action or proceeding so directed would involve the Property Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights under the Partnership Preferred Securities Junior Subordinated Notes after a Holder of record of Trust Preferred Securities has made a written request, such Holder of record of Trust Preferred Securities may, to the fullest extent permitted by applicable law, directly institute a legal proceeding directly against the General Partner or the Special Representative, Junior Subordinated Note Issuer to enforce the Property Trustee's ’s rights under the Partnership Preferred Securities Indenture without first instituting any legal proceeding against the Property Trustee, the Trust Trustee or any other Person. Notwithstanding the foregoing, for so long as the Property Trustee is the holder of any Partnership Preferred SecuritiesIn addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of an Investment Affiliate the Junior Subordinated Note Issuer to make any interest, principal or other required payment payments when due on any 53 Affiliate Investment Instrument and under the failure of the Company to make any required payment with respect thereto when due on any Investment GuaranteeIndenture, then a Holder of Trust Preferred Securities may, on behalf of the Partnership, may directly institute a proceeding against such Investment Affiliate with respect to such Affiliate Investment Instrument or Direct Action against the Company with respect to any such Investment Guarantee, Junior Subordinated Note Issuer on or after the respective due date specified in each case for enforcement of paymentthe Junior Subordinated Notes.
(d) The Subject to section 2.7 the Property Trustee shall notify all Holders of the Trust Preferred Securities of any notice of any Partnership Enforcement Indenture Event of Default received from the General Partner Junior Subordinated Note Issuer or the Indenture Trustee with respect to the Partnership Preferred Securities and the Affiliate Investment InstrumentsJunior Subordinated Notes. Such notice shall state that such Partnership Enforcement Indenture Event of Default also constitutes a Trust Enforcement Event. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 8.4(b)(iclauses 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that as a result of such action, the Trust will not fail to be classified as an association or a publicly traded partnership taxable as a corporation grantor trust for United States federal income tax purposes and each Holder will continue to be treated as owning an undivided beneficial ownership interest in the Partnership Preferred Securitiesa result of such action.
(e) In the event the consent of the Property Trustee, as the Holder of the Partnership Preferred SecuritiesJunior Subordinated Notes, is required under the Agreement of Limited Partnership Indenture with respect to any amendment, amendment or modification or termination of the Agreement of Limited PartnershipIndenture, the Property Trustee shall request the direction of the Holders of the Trust Securities with respect to such amendment, amendment or modification or termination and shall vote with respect to such amendment, amendment or modification or termination as directed by not less than a Majority majority in liquidation amount Liquidation Amount of the Trust Securities voting together as a single class; provided, however, that where a consent under the Agreement of Limited Partnership Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the Partnership Preferred SecuritiesJunior Subordinated Notes, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount Liquidation Amount of the Trust Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Trust Securities unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that such action is not inconsistent with the Trust being will not be classified as other than a grantor trust for United States federal income tax purposespurposes as a result of such action.
(f) A waiver of a Partnership Enforcement an Indenture Event of Default with respect to the Partnership Preferred Securities Junior Subordinated Notes will constitute a waiver of the corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of Trust Preferred Securities may be given at a separate meeting of Holders of Trust Preferred Securities convened for such purpose, at a meeting of all of the Holders of Trust Securities or pursuant to written consent. The Regular Administrative Trustees will cause a notice of any meeting at which Holders of Trust Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, vote to be mailed to each Holder of record of Trust Preferred Securities. Each such notice will include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consentsproxies.
(h) No vote or consent of the Holders of Trust Preferred Securities will shall be required for the Trust to redeem and cancel Trust Preferred Securities or distribute Partnership Preferred Securities Junior Subordinated Notes in accordance with this Trust Agreement and the Trust Agreementterms of the Securities.
(i) Notwithstanding that Holders of Trust Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Securities that are beneficially owned at such time by the Company Junior Subordinated Note Issuer, any Administrative Trustee or any entity directly or indirectly controlled by, or under direct or indirect common control with, the CompanyJunior Subordinated Note Issuer or any Administrative Trustee, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Trust Securities were not outstanding; PROVIDED, providedHOWEVER, however that persons otherwise eligible to vote to whom the Company Junior Subordinated Note Issuer or any of its subsidiaries have pledged Trust Preferred Securities may vote or consent with respect to such pledged Trust Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Trust Preferred Securities will shall have no rights to appoint or remove the Regular Trustees, who may be appointed, removed or replaced solely by the CompanyCommon Securities Holder.
(k) Subject to the rights of the Holders of a Majority in Liquidated Amount of the Common Securities to appoint or remove Administrative Trustees as provided in Section 6.6(a)(iii), as if an Indenture Event of Default has occurred and is continuing, the Holder of all Trustees may be removed at such time only by a Majority in Liquidation Amount of the Trust Common Preferred Securities.
Appears in 1 contract
Voting Rights of Trust Preferred Securities. (a) Except as provided under Sections 2.6, 6.1(b) Section 11.1 and this Article VIII 7 and as otherwise required by the Business Statutory Trust Act, the Trust Indenture Act and other applicable law, the Holders of the Trust Preferred Securities will shall have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in Section 8.4(d7.5(d) below, the Holders of a Majority in liquidation amount Liquidation Amount of the Trust Preferred Securities voting separately as a class have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or to direct the exercise of any trust or power conferred upon the Property Trustee under this the Trust Agreement, including the right to direct the Property Trustee, as Holder of the Partnership Preferred SecuritiesDebentures, to (i) exercise the remedies available to it under the Agreement of Limited Partnership Indenture as a Holder of the Partnership Preferred Securities, including the right to direct the Special Representative of the Partnership as elected by the Holders of the Partnership Preferred Securities in accordance with the Agreement of Limited Partnership to enforce, to the fullest extent permitted by law, (A) the Partnership's creditors rights and other rights with respect to the Affiliate Investment Instruments and any Investment Guarantees, (B) the rights of the holders of the Partnership Preferred Securities under the Partnership Guarantee, and (C) the rights of the holders of the Partnership Preferred Securities to receive distributions (if and to the extent such distributions have been declared out of funds legally available therefor by the General Partner in its sole discretion) on the Partnership Preferred Securities or Debentures; (ii) consent to any amendment, modification, amendment or termination modification of the Agreement of Limited Partnership Indenture or the Partnership Preferred Securities Debentures where such consent shall be requiredrequired (iii) waive any past default and its consequences that is waivable under Section 512 of the Indenture or (iv) cancel an acceleration of the principal of the Debentures; provided, however, that if an Indenture Event of Default has occurred and is continuing, then the Holders of 25% of the aggregate Liquidation Amount of the Trust Preferred Securities may direct the Property Trustee to declare the principal of and interest on the Debentures due and payable; provided, further, that where a consent or action under the Agreement of Limited Partnership Indenture would require the consent or act of the Holders of more than a majority of the aggregate liquidation principal amount of Partnership Preferred Securities Debentures affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount Liquidation Amount of the Trust Preferred Securities which is at least equal to the percentage required under the Agreement of Limited Partnership Indenture may direct the Property Trustee to give such consent or to take such action; provided, further, that (subject to the provisions of Section 3.9) the Property Trustee shall have the right to decline to follow any such direction if the Property Trustee shall determine that the action on behalf so directed would be unjustly prejudicial to the Holders of Trust Preferred Securities not taking part in such direction or if the TrustProperty Trustee, being advised by counsel, determines that the action or proceeding so directed may not lawfully be taken or if the Property Trustee, in good faith, by its board of directors or trustees, executive committee, or a trust committee of directors or trustees, and/or Responsible Officers, shall determine that the action or proceeding so directed would involve the Property Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights under the Partnership Preferred Securities Debentures after a Holder of record of Trust Preferred Securities has made a written request, such Holder of record of Trust Preferred Securities may, to the fullest extent permitted by applicable law, directly institute a legal proceeding directly against the General Partner or the Special Representative, Debenture Issuer to enforce the Property Trustee's ’s rights under the Partnership Preferred Securities Indenture without first instituting any legal proceeding against the Property Trustee, the Trust Trustee or any other Person. Notwithstanding the foregoing, for so long as the Property Trustee is the holder of any Partnership Preferred SecuritiesIn addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of an Investment Affiliate the Debenture Issuer to make any interest, principal or other required payment payments when due on any 53 Affiliate Investment Instrument and under the failure of the Company to make any required payment with respect thereto when due on any Investment GuaranteeIndenture, then a Holder of Trust Preferred Securities may, on behalf of the Partnership, may directly institute a proceeding against such Investment Affiliate with respect to such Affiliate Investment Instrument or Direct Action against the Company with respect to any such Investment Guarantee, Debenture Issuer on or after the respective due date specified in each case for enforcement of paymentthe Debentures.
(d) The Subject to Section 2.7, the Property Trustee shall notify all Holders of the Trust Preferred Securities of any notice of any Partnership Enforcement Indenture Event of Default received from the General Partner Debenture Issuer with respect to the Partnership Preferred Securities and the Affiliate Investment InstrumentsDebentures. Such notice shall state that such Partnership Enforcement Indenture Event of Default also constitutes a Trust Enforcement Event. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 8.4(b)(iclauses 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not fail to be classified as a grantor trust for United States federal income tax purposes as a result of such action, the Trust will not be classified as an association or a publicly traded partnership taxable as a corporation for United States federal income tax purposes and each Holder will continue to be treated as owning an undivided beneficial ownership interest in the Partnership Preferred SecuritiesDebentures.
(e) In the event the consent of the Property Trustee, as the Holder of the Partnership Preferred SecuritiesDebentures, is required under the Agreement of Limited Partnership Indenture with respect to any amendment, amendment or modification or termination of the Agreement of Limited PartnershipIndenture, the Property Trustee shall request the direction of the Holders of the Trust Securities with respect to such amendment, amendment or modification or termination and shall vote with respect to such amendment, amendment or modification or termination as directed by not less than a Majority in liquidation amount Liquidation Amount of the Trust Securities voting together as a single class; provided, however, that where a consent under the Agreement of Limited Partnership Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the Partnership Preferred SecuritiesDebentures, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount Liquidation Amount of the Trust Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Trust Securities unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that such action is not inconsistent with the Trust being will not be classified as other than a grantor trust for United States federal income tax purposespurposes as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Debentures.
(f) A waiver of a Partnership Enforcement an Indenture Event of Default with respect to the Partnership Preferred Securities Debentures will constitute a waiver of the corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of Trust Preferred Securities may be given at a separate meeting of Holders of Trust Preferred Securities convened for such purpose, at a meeting of all both the Holders of Common Securities and the Holders of Trust Preferred Securities or pursuant to written consent. The Regular Administrative Trustees will cause a notice of any meeting at which Holders of Trust Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, vote to be mailed to each Holder of record of Trust Preferred Securities. Each such notice will include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consentsproxies.
(h) No vote or consent of the Holders of Trust Preferred Securities will shall be required for the Trust to redeem and cancel Trust Preferred Securities or distribute Partnership Preferred Securities Debentures in accordance with this Trust Agreement and the Trust Agreementterms of the Securities.
(i) Notwithstanding that Holders of Trust Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Securities that are beneficially owned at such time by the Company Debenture Issuer, any Administrative Trustee or any entity directly or indirectly controlled by, or under direct or indirect common control with, the CompanyDebenture Issuer or any Administrative Trustee, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Trust Securities were not outstanding, ; provided, however however, that persons otherwise eligible to vote to whom the Company Debenture Issuer or any of its subsidiaries have pledged Trust Preferred Securities may vote or consent with respect to such pledged Trust Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Trust Preferred Securities will shall have no rights to appoint or remove the Regular Trustees, who may be appointed, removed or replaced solely by the CompanyCommon Securities Holder.
(k) Subject to the rights of the Holders of a Majority in Liquidation Amount of the Common Securities to appoint or remove Administrative Trustees as provided in Section 6.6(a)(iii), as if an Indenture Event of Default has occurred and is continuing, the Holder of all Trustees may be removed at such time only by a Majority in Liquidation Amount of the Trust Common Preferred Securities.
Appears in 1 contract
