Exhibit 10.2
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AMENDED AND RESTATED TRUST AGREEMENT
among
ANTHRACITE CAPITAL, INC.,
as Depositor
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Property Trustee
XXXXX FARGO DELAWARE TRUST COMPANY,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
as Administrative Trustees
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Dated as of September 26, 2005
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ANTHRACITE CAPITAL TRUST I
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CONTENTS
Clause Page
ARTICLE I. Defined Terms..................................................1
Section 1.1. Definitions.................................................1
ARTICLE II. The Trust.....................................................11
Section 2.1. Name.......................................................11
Section 2.2. Office of the Delaware Trustee; Principal Place
of Business........................................11
Section 2.3. Initial Contribution of Trust Property; Fees,
Costs and Expenses.................................11
Section 2.4. Purposes of Trust..........................................11
Section 2.5. Authorization to Enter into Certain Transactions...........12
Section 2.6. Assets of Trust............................................14
Section 2.7. Title to Trust Property....................................14
ARTICLE III. Payment Account; Paying Agents...............................15
Section 3.1. Payment Account............................................15
Section 3.2. Appointment of Paying Agents...............................15
ARTICLE IV. Distributions; Redemption.....................................16
Section 4.1. Distributions..............................................16
Section 4.2. Redemption.................................................17
Section 4.3. Subordination of Common Securities.........................19
Section 4.4. Payment Procedures.........................................20
Section 4.5. Withholding Tax............................................20
Section 4.6. Tax Returns and Other Reports..............................21
Section 4.7. Payment of Taxes, Duties, Etc. of the Trust................21
Section 4.8. Payments under Indenture or Pursuant to Direct Actions.....21
Section 4.9. Exchanges..................................................21
Section 4.10. Calculation Agent..........................................22
Section 4.11. Certain Accounting Matters.................................23
ARTICLE V. Securities....................................................24
Section 5.1. Initial Ownership..........................................24
Section 5.2. Authorized Trust Securities................................24
Section 5.3. Issuance of the Common Securities; Subscription and
Purchase of Notes..................................24
Section 5.4. The Securities Certificates................................24
Section 5.5. Rights of Holders..........................................25
Section 5.6. Book-Entry Preferred Securities............................25
Section 5.7. Registration of Transfer and Exchange of Preferred
Securities Certificates............................27
Section 5.8. Mutilated, Destroyed, Lost or Stolen Securities
Certificates.......................................28
Section 5.9. Persons Deemed Holders.....................................29
Section 5.10. Cancellation...............................................29
Section 5.11. Ownership of Common Securities by Depositor................30
Section 5.12. Restricted Legends.........................................30
Section 5.13. Form of Certificate of Authentication......................32
ARTICLE VI. Meetings; Voting; Acts of Holders.............................33
Section 6.1. Notice of Meetings.........................................33
Section 6.2. Meetings of Holders of the Preferred Securities............33
Section 6.3. Voting Rights..............................................33
Section 6.4. Proxies, Etc...............................................34
Section 6.5. Holder Action by Written Consent...........................34
Section 6.6. Record Date for Voting and Other Purposes..................34
Section 6.7. Acts of Holders............................................34
Section 6.8. Inspection of Records......................................35
Section 6.9. Limitations on Voting Rights...............................35
Section 6.10. Acceleration of Maturity; Rescission of Annulment;
Waivers of Past Defaults...........................36
ARTICLE VII. Representations and Warranties................................39
Section 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee...........................39
Section 7.2. Representations and Warranties of Depositor................40
ARTICLE VIII. The Trustees..................................................41
Section 8.1. Number of Trustees.........................................41
Section 8.2. Property Trustee Required..................................41
Section 8.3. Delaware Trustee Required..................................42
Section 8.4. Appointment of Administrative Trustees.....................42
Section 8.5. Duties and Responsibilities of the Trustees................42
Section 8.6. Notices of Defaults and Extensions.........................44
Section 8.7. Certain Rights of Property Trustee.........................44
Section 8.8. Delegation of Power........................................47
Section 8.9. May Hold Securities........................................47
Section 8.10. Compensation; Reimbursement; Indemnity.....................47
Section 8.11. Resignation and Removal; Appointment of Successor..........48
Section 8.12. Acceptance of Appointment by Successor.....................49
Section 8.13. Merger, Conversion, Consolidation or Succession
to Business........................................50
Section 8.14. Not Responsible for Recitals or Issuance of Securities.....50
Section 8.15. Property Trustee May File Proofs of Claim..................50
Section 8.16. Reports to the Property Trustee............................51
ARTICLE IX. Termination, Liquidation and Merger...........................52
Section 9.1. Dissolution Upon Expiration Date...........................52
Section 9.2. Early Termination..........................................52
Section 9.3. Termination................................................52
Section 9.4. Liquidation................................................52
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Trust..............................54
ARTICLE X. Miscellaneous Provisions......................................55
Section 10.1. Limitation of Rights of Holders............................55
Section 10.2. Agreed Tax Treatment of Trust and Trust Securities.........55
Section 10.3. Amendment..................................................56
Section 10.4. Separability...............................................57
Section 10.5. Governing Law..............................................57
Section 10.6. Successors.................................................57
Section 10.7. Headings...................................................58
Section 10.8. Reports, Notices and Demands...............................58
Section 10.9. Agreement Not to Petition..................................58
Section 10.10. Counterparts...............................................59
Exhibit A.........Certificate of Trust of Anthracite Capital Trust I
Exhibit B.........Form of Common Securities Certificate
Exhibit C.........Form of Preferred Securities Certificate
Exhibit D.........Junior Subordinated Indenture
Exhibit E.........Form of Certificate to be Executed for Transferees
Exhibit F.........Form of Officer's Financial Certificate
Schedule A........Calculation of LIBOR
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of September 26,
2005, among (i) Anthracite Capital, Inc., a Maryland corporation (including
any successors or permitted assigns, the "Depositor"), (ii) Xxxxx Fargo Bank,
National Association, a national banking association, as property trustee (in
such capacity, the "Property Trustee"), (iii) Xxxxx Fargo Delaware Trust
Company], as Delaware trustee (in such capacity, the "Delaware Trustee"), (iv)
Xxxxxxx X. Xxxx, an individual, Xxxxx X. Xxxxxx, an individual and Xxxxxx X.
Xxxxxxxxx, an individual, each of whose address is c/o Anthracite Capital,
Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, as administrative trustees (in
such capacities, each an "Administrative Trustee" and, collectively, the
"Administrative Trustees" and, together with the Property Trustee and the
Delaware Trustee, the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore created a
Delaware statutory trust pursuant to the Delaware Statutory Trust Act by
entering into a Trust Agreement, dated as of September 21, 2005 (the "Original
Trust Agreement"), and by executing and filing with the Secretary of State of
the State of Delaware the Certificate of Trust, substantially in the form
attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in and to the
Notes;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Holders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned
to them in this Article I;
(b) the words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(c) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(d) unless the context otherwise requires, any reference to an
"Article", a "Section", a "Schedule" or an "Exhibit" refers to an
Article, a Section, a Schedule or an Exhibit, as the case may be, of or
to this Trust Agreement;
(e) the words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
"Act" has the meaning specified in Section 6.7.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Interest Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Notes for such period.
"Additional Taxes" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Tax Sums" has the meaning specified in Section 10.5 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trust Agreement, solely in
each such Person's capacity as Administrative Trustee of the Trust and not in
such Person's individual capacity, or any successor Administrative Trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Depositary Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Preferred Security, the rules and
procedures of the Depositary for such Book-Entry Preferred Security, in each
case to the extent applicable to such transaction and as in effect from time
to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises (i) judging such Person a bankrupt or insolvent, (ii)
approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such
Person under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, (iii) appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Person or of any substantial part of its
property or (iv) ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of sixty (60) consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the
filing of any such petition or to the appointment of a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated a
bankrupt or insolvent, or the taking of corporate action by such
Person in furtherance of any such action.
"Bankruptcy Laws" means all Federal and state bankruptcy, insolvency,
reorganization and other similar laws, including the United States Bankruptcy
Code.
"Book-Entry Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Depositary.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed or (c) a day on which the
Corporate Trust Office is closed for business.
"Calculation Agent" has the meaning specified in Section 4.10.
"Closing Date" has the meaning specified in the Purchase Agreement.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after
the execution of this Trust Agreement such Commission is not existing and
performing the duties assigned to it, then the body performing such duties at
such time.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement.
"Common Securities Subscription Agreement" means the agreement of even
date herewith by and between the Depositor and the Trust pertaining to the
sale and purchase of the Common Securities.
"Corporate Trust Office" means the principal office of the Property
Trustee at which any particular time its corporate trust business shall be
administered, which office at the date of this Trust Agreement is located at
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, Attention:
Corporate Trust Services--Anthracite Capital Trust I.
"Definitive Preferred Securities Certificates" means Preferred Securities
issued in certificated, fully registered form that are not Global Preferred
Securities.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., or any successor statute
thereto, in each case as amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Delaware
Trustee of the Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware Trustee appointed as
herein provided.
"Depositary" means an organization registered as a clearing agency under
the Exchange Act that is designated as Depositary by the Depositor or any
successor thereto. DTC will be the initial Depositary.
"Depositary Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement and any successors and permitted assigns.
"Depositor Affiliate" has the meaning specified in Section 4.9.
"Distribution Date" has the meaning specified in Section 4.1(a)(i).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company, a New York corporation, or any
successor thereto.
"Early Termination Event" has the meaning specified in Section 9.2.
"XXXXX" has the meaning specified in Section 4.11(c).
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) the occurrence of a Note Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a
period of thirty (30) days; or
(c) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect
of any covenant or warranty of the Trustees in this Trust Agreement
(other than those specified in clause (b) or (c) above) and
continuation of such default or breach for a period of thirty (30)
days after there has been given, by registered or certified mail, to
the Trustees and to the Depositor by the Holders of at least twenty
five percent (25%) in aggregate Liquidation Amount of the
Outstanding Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been
appointed within ninety (90) days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Fiscal Year" shall be the fiscal year of the Trust, which shall be the
calendar year, or such other period as is required by the Code.
"Global Preferred Security" means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Statutory
Trust Act.
"Indemnified Person" has the meaning specified in Section 8.10(c).
"Indenture" means the Junior Subordinated Indenture executed and
delivered by the Depositor and the Note Trustee contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the holders
of the Notes, a copy of which is attached hereto as Exhibit D, as amended or
supplemented from time to time.
"Interest Payment Date(s)" has the meaning specified in Section 1.1 of
the Indenture.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Investment Company Event" has the meaning specified in Section 1.1 of
the Indenture.
"Junior Subordinated Note Purchase Agreement" means the agreement of even
date herewith by and between the Depositor and the Trust pertaining to the
issuance and purchase of the Notes.
"LIBOR" has the meaning specified in Schedule A.
"LIBOR Business Day" has the meaning specified in Schedule A.
"LIBOR Determination Date" has the meaning specified in Schedule A.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Notes to be contemporaneously redeemed or paid at maturity
in accordance with the Indenture, the proceeds of which will be used to pay
the Redemption Price of such Trust Securities, (b) with respect to a
distribution of Notes to Holders of Trust Securities in connection with a
dissolution of the Trust, Notes having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Notes
are distributed and (c) with respect to any distribution of Additional
Interest Amounts to Holders of Trust Securities, Notes having a principal
amount equal to the Liquidation Amount of the Trust Securities in respect of
which such distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which assets are to be distributed
to Holders in accordance with Section 9.4(a) hereunder following dissolution
of the Trust.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount" means Common Securities or Preferred
Securities, as the case may be, representing more than fifty percent (50%) of
the aggregate Liquidation Amount of all (or a specified group of) then
Outstanding Common or Preferred Securities, as the case may be.
"Note Event of Default" means any "Event of Default" specified in Section
5.1 of the Indenture.
"Note Redemption Date" means, with respect to any Notes to be redeemed
under the Indenture, the date fixed for redemption of such Notes under the
Indenture.
"Note Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Notes" means the Depositor's Junior Subordinated Notes issued pursuant
to the Indenture.
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President or an Executive Vice President, and by the Chief
Financial Officer, Treasurer or an Assistant Treasurer, of the Depositor, and
delivered to the Trustees. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
(other than the certificate provided pursuant to Section 8.16 which is not an
Officers' Certificate) shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Operative Documents" means the Purchase Agreement, the Indenture, the
Trust Agreement, the Notes, the Common Securities Subscription Agreement, the
Junior Subordinated Note Purchase Agreement, and the Trust Securities.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Depositor or any Affiliate of the
Depositor.
"Optional Note Redemption Price" means, with respect to any Note to be
redeemed on any Redemption Date under the Indenture, an amount equal to one
hundred percent (100%) of the outstanding principal amount of such Note,
together with accrued interest, including any Additional Interest (to the
extent legally enforceable), thereon through but not including the date fixed
as such Redemption Date.
"Optional Redemption Price" means, with respect to any Trust Security, an
amount equal to one hundred percent (100%) of the Liquidation Amount of such
Trust Security on the Redemption Date, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium,
if any, and/or accrued interest, including Additional Interest, if any,
thereon paid by the Depositor upon the concurrent redemption or payment at
maturity of a Like Amount of Notes.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to any Trust Securities, means, as
of the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for which payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent in trust for the Holders of such Trust
Securities; provided, that if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and
delivered pursuant to the provisions of this Trust Agreement, unless
proof satisfactory to the Property Trustee is presented that any
such Trust Securities are held by Holders in whose hands such Trust
Securities are valid, legal and binding obligations of the Trust;
provided, that in determining whether the Holders of the requisite Liquidation
Amount of the Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or of any Trustee shall be disregarded and deemed not to be
Outstanding, except that (i) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee knows
to be so owned shall be so disregarded and (ii) the foregoing shall not apply
at any time when all of the Outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor, any Trustee or
any Affiliate of the Depositor or of any Trustee.
"Owner" means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the Depositary or, if a
Depositary Participant is not the beneficial owner, then the beneficial owner
as reflected in the records of the Depositary Participant.
"Paying Agent" means any Person authorized by the Administrative Trustees
to pay Distributions or other amounts in respect of any Trust Securities on
behalf of the Trust.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee for the benefit of the Holders in
which all amounts paid in respect of the Notes will be held and from which the
Property Trustee, through the Paying Agent, shall make payments to the Holders
in accordance with Sections 3.1, 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association or government, or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit C.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Property
Trustee of the Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Property Trustee appointed as
herein provided.
"Purchase Agreement" means the Purchase Agreement or Purchase Agreements
(whether one or more) executed and delivered contemporaneously with this
Agreement by the Trust, the Depositor and the purchaser(s) named therein, as
the same may be amended from time to time.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act of 1933, as amended.
"QP" means a "qualified purchaser" as defined in Section 2(a)(51) of the
Investment Company Act of 1940, as amended.
"QIB/QP" means a QIB that is also a QP.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided, that each Note Redemption Date and the stated maturity
(or any date of principal repayment upon early maturity) of the Notes shall be
a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means the Special Redemption Price or Optional
Redemption Price, as applicable. If the Depositor has redeemed the Notes at
the Special Note Redemption Price, the Trust shall redeem the Trust Securities
at the Special Redemption Price. If the Depositor has redeemed the Notes at
the Optional Note Redemption Price, the Trust shall redeem the Trust
Securities at the Optional Redemption Price.
"Reference Banks" has the meaning specified in Schedule A.
"Responsible Officer" means, with respect to the Property Trustee, the
officer in the Corporate Trust Services department of the Property Trustee
having direct responsibility for the administration of this Trust Agreement.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.7.
"Special Note Redemption Price" means, with respect to any Note to be
redeemed on any Redemption Date under the Indenture, an amount equal to one
hundred seven and one half percent (107.5%) of the outstanding principal
amount of such Note, together with accrued interest, including Additional
Interest, thereon through but not including the date fixed as such Redemption
Date.
"Special Redemption Price" means, with respect to any Trust Security, an
amount equal to one hundred seven and one half percent (107.5%) of the
Liquidation Amount of such Trust Security on the Redemption Date, plus
accumulated and unpaid Distributions to the Redemption Date, plus the related
amount of the premium, if any, and/or accrued interest, including Additional
Interest, if any, thereon paid by the Depositor upon the concurrent redemption
or payment at maturity of a Like Amount of Notes.
"Successor Securities" has the meaning specified in Section 9.5(a).
"Tax Event" has the meaning specified in Section 1.1 of the Indenture.
"Trust" means the Delaware statutory trust known as "Anthracite Capital
Trust I," which was created on September 21, 2005 under the Delaware Statutory
Trust Act pursuant to the Original Trust Agreement and the filing of the
Certificate of Trust, and continued pursuant to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented from time to time in accordance
with the applicable provisions hereof, including all Schedules and Exhibits.
"Trustees" means the Administrative Trustees, the Property Trustee and
the Delaware Trustee, each as defined in this Article I.
"Trust Property" means (a) the Notes, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
ARTICLE II.
THE TRUST
SECTION 2.1. Name.
The statutory trust continued hereby shall be known as "Anthracite
Capital Trust I", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Xxxxx
Fargo Delaware Trust Company, 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice
to the Holders, the Depositor, the Property Trustee and the Administrative
Trustees. The principal executive office of the Trust is 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Chief Financial Officer, as such address may be
changed from time to time by the Administrative Trustees following written
notice to the Holders and the other Trustees.
SECTION 2.3. Initial Contribution of Trust Property; Fees,
Costs and Expenses.
The Property Trustee acknowledges receipt from the Depositor in
connection with the Original Trust Agreement of the sum of ten dollars ($10),
which constituted the initial Trust Property. The Depositor shall pay all
fees, costs and expenses of the Trust (except with respect to the Trust
Securities) as they arise or shall, upon request of any Trustee, promptly
reimburse such Trustee for any such fees, costs and expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such fees, costs or expenses.
SECTION 2.4. Purposes of Trust.
(a) The exclusive purposes and functions of the Trust are to (i) issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Notes, (ii) make distributions as provided herein, (iii) enter into and
perform its obligations under agreements, documents, and instructions
(including without limitation the Operative Documents to which it is a party)
necessary to accomplish (i) and (ii) above, and (iv) engage in only those
activities necessary or incidental thereto. The Delaware Trustee, the Property
Trustee and the Administrative Trustees are trustees of the Trust, and have
all the rights, powers and duties to the extent set forth herein. The Trustees
hereby acknowledge that they are trustees of the Trust.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust (or the Trustees acting on behalf of the
Trust) shall not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) incur any indebtedness for borrowed money or issue any other debt, (iv)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property, (v) take or consent to any action that would
reasonably be expected to cause the Trust to become taxable as a corporation
or classified as other than a grantor trust for United States federal income
tax purposes, (vi) take or consent to any action that would cause the Notes to
be treated as other than indebtedness of the Depositor for United States
federal income tax purposes or (vii) take or consent to any action that would
cause the Trust to be deemed to be an "investment company" required to be
registered under the Investment Company Act.
SECTION 2.5. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with and subject to the terms of this Trust Agreement. In accordance with the
following provisions (i) and (ii), the Trustees shall have the authority to
enter into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees, under this Trust Agreement, and to perform all acts in
furtherance thereof, including the following:
(i) As among the Trustees, each Administrative Trustee shall
severally have the power and authority to act on behalf of the Trust with
respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, such agreements as may be
necessary or desirable in connection with the purposes and function
of the Trust, including, without limitation, the Operative Documents
to which it is a party;
(C) assisting in the sale of the Preferred Securities in one or
more transactions exempt from registration under the Securities Act,
and in compliance with applicable state securities or blue sky laws;
(D) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and
the Notes to the Holders in accordance with this Trust Agreement;
(E) the appointment of a Paying Agent and Securities Registrar
in accordance with this Trust Agreement;
(F) execution of the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;
(G) execution and delivery of closing certificates, if any,
pursuant to the Purchase Agreement and application for a taxpayer
identification number for the Trust;
(H) preparation and filing of all applicable tax returns and
tax information reports that are required to be filed on behalf of
the Trust;
(I) establishing a record date with respect to all actions to
be taken hereunder that require a record date to be established,
except as provided in Section 6.10(a);
(J) unless otherwise required by the Delaware Statutory Trust
Act to execute on behalf of the Trust (either acting alone or
together with the other Administrative Trustees) any documents that
such Administrative Trustee has the power to execute pursuant to
this Trust Agreement; and
(K) the taking of any action incidental to the foregoing as
such Administrative Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this Trust
Agreement.
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the receipt and holding of legal title of the Notes;
(B) the establishment of the Payment Account;
(C) the collection of interest, principal and any other
payments made in respect of the Notes and the holding of such
amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Notes in accordance with the terms of this Trust
Agreement;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Notes to the Holders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust, provided that the
Administrative Trustees shall have the power, duty and authority to
act on behalf of the Trust with respect to the preparation,
execution and filing of the certificate of cancellation of the Trust
with the Secretary of State of the State of Delaware; and
(I) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the
Holders (without consideration of the effect of any such action on
any particular Holder).
(b) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the negotiation of the terms of, and the execution and delivery
of, the Purchase Agreement providing for the sale of the Preferred
Securities in one or more transactions exempt from registration under the
Securities Act, and in compliance with applicable state securities or
blue sky laws; and
(ii) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(c) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and
authorized to operate the Trust so that the Trust will not be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes, so that the Notes will be treated as indebtedness
of the Depositor for United States federal income tax purposes and so that the
Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act. In respect thereof, each
Administrative Trustee is authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that such
Administrative Trustee determines in his or her discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Outstanding
Preferred Securities. In no event shall the Administrative Trustees be liable
to the Trust or the Holders for any failure to comply with this Section 2.5 to
the extent that such failure results solely from a change in law or regulation
or in the interpretation thereof.
(d) Any action taken by a Trustee in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with any Trustee
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of such Trustee to bind the Trust. Persons dealing with the Trust
are entitled to rely conclusively on the power and authority of any Trustee as
set forth in this Trust Agreement.
SECTION 2.6. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.7. Title to Trust Property.
(a) Legal title to all Trust Property shall be vested at all times in the
Property Trustee and shall be held and administered by the Property Trustee in
trust for the benefit of the Trust and the Holders in accordance with this
Trust Agreement.
(b) The Holders shall not have any right or title to the Trust Property
other than the undivided beneficial interest in the assets of the Trust
conferred by their Trust Securities and they shall have no right to call for
any partition or division of property, profits or rights of the Trust except
as described below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT; PAYING AGENTS
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and the Paying Agent shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by
the Property Trustee in the Payment Account for the exclusive benefit of the
Holders and for Distribution as herein provided.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments with respect to, the Notes. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution thereof.
SECTION 3.2. Appointment of Paying Agents.
The Paying Agent shall initially be the Property Trustee. The Paying
Agent shall make Distributions to Holders from the Payment Account and shall
report the amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent in their sole discretion. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon thirty (30)
days' written notice to the Administrative Trustees and the Property Trustee.
If the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company) to act as Paying Agent. Such successor Paying Agent appointed
by the Administrative Trustees shall execute and deliver to the Trustees an
instrument in which such successor Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent will hold all sums, if any,
held by it for payment to the Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders. The Paying
Agent shall return all unclaimed funds to the Property Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Article VIII shall apply
to the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to
any other Paying Agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including any Additional Interest Amounts)
will be made on the Trust Securities at the rate and on the dates that
payments of interest (including any Additional Interest) are made on the
Notes. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust available
for the payment of Distributions. Distributions shall accumulate from
September 26, 2005, and, except as provided in clause (ii) below, shall
be payable quarterly in arrears on January 30, April 30, July 30 and
October 30 of each year, commencing on October 30, 2005. If any date on
which a Distribution is otherwise payable on the Trust Securities is not
a Business Day, then the payment of such Distribution shall be made on
the next succeeding Business Day (and no interest shall accrue in respect
of the amounts whose payment is so delayed for the period from and after
each such date until the next succeeding Business Day), except that, if
such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date (each date
on which Distributions are payable in accordance with this Section
4.1(a)(i), a "Distribution Date"); -----------------
(ii) Distributions shall accumulate in respect of the Trust
Securities bearing interest at a fixed rate of 7.4975% per annum, through
the interest payment date in October 2015, and thereafter at a variable
rate of LIBOR plus 2.90% per annum of the Liquidation Amount of the Trust
Securities, such rate being the rate of interest payable on the Notes.
LIBOR shall be determined by the Calculation Agent in accordance with
Schedule A. The amount of Distributions payable for any Distribution
period shall be computed on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in the relevant interest
period. The amount of Distributions payable for any period shall include
any Additional Interest Amounts in respect of such period; and
(iii) Distributions on the Trust Securities shall be made by the
Paying Agent from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on
hand and legally available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) preceding the relevant Distribution Date,
except that Distributions and any Additional Interest Amounts payable on the
stated maturity (or any date of principal repayment upon early maturity) of
the principal of a Trust Security or on a Redemption Date shall be paid to the
Person to whom principal is paid. Distributions payable on any Trust
Securities that are not punctually paid on any Distribution Date as a result
of the Depositor having failed to make an interest payment under the Notes
will cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distributions and
any Additional Interest Amounts will instead be payable to the Person in whose
name such Trust Securities are registered on the special record date, or other
specified date for determining Holders entitled to such defaulted Distribution
and Additional Interest Amount, established in the same manner, and on the
same date, as such is established with respect to the Notes under the
Indenture.
(c) As a condition to the payment of any principal of or interest on the
Trust Securities without the imposition of withholding tax, the Administrative
Trustees shall require the previous delivery of properly completed and signed
applicable U.S. federal income tax certifications (generally, an Internal
Revenue Service Form W-9 (or applicable successor form) in the case of a
person that is a "United States person" within the meaning of Section
7701(a)(30) of the Code or an Internal Revenue Service Form W-8 (or applicable
successor form) in the case of a person that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code) and any other
certification acceptable to it to enable the Property Trustee or any Paying
Agent to determine in good faith their respective duties and liabilities with
respect to any taxes or other charges that they may be required to pay, deduct
or withhold in respect of such Trust Securities.
SECTION 4.2. Redemption.
(a) On each Note Redemption Date and on the stated maturity (or any date
of principal repayment upon early maturity) of the Notes and on each other
date on (or in respect of) which any principal on the Notes is repaid, the
Trust will be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than thirty (30) nor more
than sixty (60) days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the
Securities Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture, as
calculated by the Depositor, together with a statement that it is an
estimate and that the actual Redemption Price will be calculated by the
Calculation Agent on the fifth Business Day prior to the Redemption Date
(and if an estimate is provided, a further notice shall be sent of the
actual Redemption Price on the date that such Redemption Price is
calculated);
(iii) if less than all the Outstanding Trust Securities are to be
redeemed, the identification (and, in the case of partial redemption, the
respective amounts) and Liquidation Amounts of the particular Trust
Securities to be redeemed;
(iv) that on the Redemption Date, the Redemption Price will become
due and payable upon each such Trust Security, or portion thereof, to be
redeemed and that Distributions thereon will cease to accumulate on such
Trust Security or such portion, as the case may be, on and after said
date, except as provided in Section 4.2(d);
(v) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price; and
(vi) such other provisions as the Property Trustee deems relevant.
(c) The Trust Securities (or portion thereof) redeemed on each Redemption
Date shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption or payment at maturity of Notes. Redemptions of the
Trust Securities (or portion thereof) shall be made and the Redemption Price
shall be payable on each Redemption Date only to the extent that the Trust has
funds then on hand and legally available in the Payment Account for the
payment of such Redemption Price. Under the Indenture, the Notes may be
redeemed by the Depositor on any Interest Payment Date, at the Depositor's
option, on or after October 30, 2010, in whole or in part, from time to time
at the Optional Note Redemption Price. The Notes may also be redeemed by the
Depositor, at its option pursuant to the terms of the Indenture, in whole but
not in part, upon the occurrence and during the continuation of an Investment
Company Event or a Tax Event, at the Special Note Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then by 10:00 A.M., New York City time, on the
Redemption Date, the Depositor shall deposit sufficient funds with the
Property Trustee to pay the Redemption Price. If such deposit has been made by
such time, then by 12:00 noon, New York City time, on the Redemption Date, the
Property Trustee will, with respect to Book-Entry Preferred Securities,
irrevocably deposit with the Depositary for such Book-Entry Preferred
Securities, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities. With respect to Preferred Securities that are not
Book-Entry Preferred Securities, the Property Trustee will irrevocably deposit
with the Paying Agent, to the extent legally available therefor, funds
sufficient to pay the applicable Redemption Price and will give the Paying
Agent irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions payable
on or prior to the Redemption Date for any Trust Securities (or portion
thereof) called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such
deposit, all rights of Holders holding Trust Securities (or portion thereof)
so called for redemption will cease, except the right of such Holders to
receive the Redemption Price and any Distribution payable in respect of the
Trust Securities on or prior to the Redemption Date, but without interest,
and, in the case of a partial redemption, the right of such Holders to receive
a new Trust Security or Securities of authorized denominations, in aggregate
Liquidation Amount equal to the unredeemed portion of such Trust Security or
Securities, and such Securities (or portion thereof) called for redemption
will cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding
Business Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after each such date until the
next succeeding Business Day), except that, if such Business Day falls in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if
made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities (or portion thereof) called for redemption is
improperly withheld or refused and not paid either by the Trust, Distributions
on such Trust Securities (or portion thereof) will continue to accumulate, as
set forth in Section 4.1, from the Redemption Date originally established by
the Trust for such Trust Securities (or portion thereof) to the date such
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the Redemption
Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Preferred Securities based upon the
relative aggregate Liquidation Amounts of the Common Securities and the
Preferred Securities. Upon such a partial redemption, the Preferred Securities
to be redeemed from each Holder of Preferred Securities shall be selected on a
pro rata basis based upon the respective Liquidation Amounts of the Preferred
Securities then held by each Holder of the Preferred Securities not more than
sixty (60) days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption;
provided, that with respect to Holders that would be required to hold less
than one hundred (100) but more than zero (0) Trust Securities as a result of
such redemption, the Trust shall redeem Trust Securities of each such Holder
so that after such redemption such Holder shall hold either one hundred (100)
Trust Securities or such Holder no longer holds any Trust Securities, and
shall use such method (including, without limitation, by lot) as the Trust
shall deem fair and appropriate; and provided, further, that so long as the
Preferred Securities are Book-Entry Preferred Securities, such selection shall
be made in accordance with the Applicable Depositary Procedures for the
Preferred Securities by such Depositary. The Property Trustee shall promptly
notify the Securities Registrar in writing of the Preferred Securities (or
portion thereof) selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the aggregate Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
(f) The Trust in issuing the Trust Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Trust Securities or as contained in any notice of
redemption and related materials.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Interest Amounts)
on, the Redemption Price of and the Liquidation Distribution in respect of,
the Trust Securities, as applicable, shall be made, pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
respective Trust Securities; provided, that if on any Distribution Date,
Redemption Date or Liquidation Date an Event of Default shall have occurred
and be continuing, no payment of any Distribution (including any Additional
Interest Amounts) on, Redemption Price of or Liquidation Distribution in
respect of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be
made unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Interest Amounts) on all Outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
and legally available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including any Additional
Interest Amounts) on, or the Redemption Price of or the Liquidation
Distribution in respect of, the Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default, the Holders of
the Common Securities shall have no right to act with respect to any such
Event of Default under this Trust Agreement until all such Events of Default
with respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement with
respect to the Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not on behalf of the Holders of the Common
Securities, and only the Holders of all the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Interest Amounts),
the Redemption Price, Liquidation Amount or any other amounts in respect of
the Preferred Securities shall be made by wire transfer at such place and to
such account at a banking institution in the United States as may be
designated in writing at least ten (10) Business Days prior to the date for
payment by the Person entitled thereto unless proper written transfer
instructions have not been received by the relevant record date, in which case
such payments shall be made by check mailed to the address of such Person as
such address shall appear in the Securities Register. If any Preferred
Securities are held by a Depositary, such Distributions thereon shall be made
to the Depositary in immediately and legally available funds. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of all the Common
Securities.
SECTION 4.5. Withholding Tax.
The Trust and the Administrative Trustees shall comply with all
withholding and backup withholding tax requirements under United States
federal, state and local law. The Administrative Trustees on behalf of the
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding and
backup withholding tax with respect to each Holder and any representations and
forms as shall reasonably be requested by the Administrative Trustees on
behalf of the Trust to assist it in determining the extent of, and in
fulfilling, its withholding and backup withholding tax obligations. The
Administrative Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding and backup withholding
tax is properly established by a Holder, shall remit amounts withheld with
respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any jurisdiction
with respect to Distributions or allocations to any Holder, the amount
withheld shall be deemed to be a Distribution in the amount of the withholding
to the Holder. In the event of any claimed overwithholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount
required to be withheld was not withheld from actual Distributions made, the
Administrative Trustees on behalf of the Trust may reduce subsequent
Distributions by the amount of such required withholding.
SECTION 4.6. Tax Returns and Other Reports.
The Administrative Trustees shall prepare (or cause to be prepared) at
the principal office of the Trust in the United States, as defined for
purposes of Treasury regulations section 301.7701-7, at the Depositor's
expense, and file, all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. The Administrative Trustees shall prepare at the principal office of
the Trust in the United States, as defined for purposes of Treasury
regulations section 301.7701-7, and furnish (or cause to be prepared and
furnished), by January 31 in each taxable year of the Trust to each Holder all
Internal Revenue Service forms and returns required to be provided by the
Trust. The Administrative Trustees shall provide the Depositor, Taberna
Capital Management, LLC and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Tax Sums and upon the written
direction of the Administrative Trustees, the Property Trustee shall promptly
pay, solely out of monies on deposit pursuant to this Trust Agreement, any
Additional Taxes imposed on the Trust by the United States or any other taxing
authority.
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall
be reduced by the amount of any corresponding payment such Holder (or any
Owner with respect thereto) has directly received pursuant to Section 5.8 of
the Indenture or Section 6.10(b) of this Trust Agreement.
SECTION 4.9. Exchanges.
(a) If at any time the Depositor or any of its Affiliates (in either
case, a "Depositor Affiliate") is the Owner or Holder of any Preferred
Securities, such Depositor Affiliate shall have the right to deliver to the
Property Trustee all or such portion of its Preferred Securities as it elects
and, subject to compliance with Sections 2.2 and 3.5 of the Indenture,
receive, in exchange therefor, a Like Amount of Notes. Such election shall be
exercisable effective on any Distribution Date by such Depositor Affiliate
delivering to the Property Trustee (i) at least ten (10) Business Days prior
to the Distribution Date on which such exchange is to occur, the registration
instructions and the documentation, if any, required pursuant to Sections 2.2
and 3.5 of the Indenture to enable the Indenture Trustee to issue the
requested Like Amount of Notes, (ii) a written notice of such election
specifying the Liquidation Amount of Preferred Securities with respect to
which such election is being made and the Distribution Date on which such
exchange shall occur, which Distribution Date shall be not less than ten (10)
Business Days after the date of receipt by the Property Trustee of such
election notice and (iii) shall be conditioned upon such Depositor Affiliate
having delivered or caused to be delivered to the Property Trustee or its
designee the Preferred Securities that are the subject of such election by
10:00 A.M. New York time, on the Distribution Date on which such exchange is
to occur. After the exchange, such Preferred Securities will be canceled and
will no longer be deemed to be Outstanding and all rights of the Depositor
Affiliate with respect to such Preferred Securities will cease.
(b) In the case of an exchange described in Section 4.9(a), the Property
Trustee on behalf of the Trust will, on the date of such exchange, exchange
Notes having a principal amount equal to a proportional amount of the
aggregate Liquidation Amount of the Outstanding Common Securities, based on
the ratio of the aggregate Liquidation Amount of the Preferred Securities
exchanged pursuant to Section 4.9(a) divided by the aggregate Liquidation
Amount of the Preferred Securities Outstanding immediately prior to such
exchange, for such proportional amount of Common Securities held by the
Depositor (which contemporaneously shall be canceled and no longer be deemed
to be Outstanding); provided, that the Depositor delivers or causes to be
delivered to the Property Trustee or its designee the required amount of
Common Securities to be exchanged by 10:00 A.M. New York time, on the
Distribution Date on which such exchange is to occur.
SECTION 4.10. Calculation Agent.
(a) The Calculation Agent may be removed by the Administrative Trustees
at any time. Notwithstanding the foregoing, the Property Trustee shall
initially and, for so long as it holds any of the Notes, be the Calculation
Agent for purposes of determining LIBOR for each Distribution Date. If the
Calculation Agent is unable or unwilling to act as such or is removed by the
Administrative Trustees, the Administrative Trustees will promptly appoint as
a replacement Calculation Agent the London office of a leading bank which is
engaged in transactions in three-month Eurodollar deposits in the
international Eurodollar market and which does not control or is not
controlled by or under common control with the Administrative Trustee or its
Affiliates. The Calculation Agent may not resign its duties without a
successor having been duly appointed.
(b) The Calculation Agent shall be required to agree that, as soon as
possible after 11:00 a.m. (London time) on each LIBOR Determination Date, but
in no event later than 11:00 a.m. (London time) on the Business Day
immediately following each LIBOR Determination Date, the Calculation Agent
will calculate the interest rate (rounded to the nearest cent, with half a
cent being rounded upwards) for the related Distribution Date, and will
communicate such rate and amount to the Depositor, the Administrative
Trustees, the Note Trustee, each Paying Agent and the Depositary. The
Calculation Agent will also specify to the Administrative Trustee the
quotations upon which the foregoing rates and amounts are based and, in any
event, the Calculation Agent shall notify the Administrative Trustees before
5:00 p.m. (London time) on each LIBOR Determination Date that either: (i) it
has determined or is in the process of determining the foregoing rates and
amounts or (ii) it has not determined and is not in the process of determining
the foregoing rates and amounts, together with its reasons therefor. The
Calculation Agent's determination of the foregoing rates and amounts for any
Distribution Date will (in the absence of manifest error) be final and binding
upon all parties. For the sole purpose of calculating the interest rate for
the Trust Securities, "Business Day" shall be defined as any day on which
dealings in deposits in Dollars are transacted in the London interbank market.
SECTION 4.11. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept at the principal office of the Trust
in the United States, as defined for purposes of Treasury Regulations section
301.7701-7, full books of account, records and supporting documents, which
shall reflect in reasonable detail each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied.
(b) The Administrative Trustees shall either (i) if the Depositor is then
subject to such reporting requirements, cause each Form 10-K and Form 10-Q
prepared by the Depositor and filed with the Commission in accordance with the
Exchange Act to be delivered to each Holder, with a copy to the Property
Trustee, within thirty (30) days after the filing thereof or (ii) cause to be
prepared at the principal office of the Trust in the United States, as defined
for purposes of Treasury Regulations section 301.7701-7, and delivered to each
of the Holders, with a copy to the Property Trustee, within ninety (90) days
after the end of each Fiscal Year, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) If the Depositor intends to file its annual and quarterly information
with the Commission in electronic form pursuant to Regulation S-T of the
Commission using the Commission's Electronic Data Gathering, Analysis and
Retrieval ("XXXXX") system, the Administrative Trustees shall notify the
Property Trustee in the manner prescribed herein of each such annual and
quarterly filing. The Property Trustee is hereby authorized and directed to
access the XXXXX system for purposes of retrieving the financial information
so filed. Compliance with the foregoing shall constitute delivery by the
Administrative Trustees of its financial statements to the Property Trustee in
compliance with the provisions of Section 314(a) of the Trust Indenture Act,
if applicable. The Property Trustee shall have no duty to search for or obtain
any electronic or other filings that the Depositor makes with the Commission,
regardless of whether such filings are periodic, supplemental or otherwise.
Delivery of reports, information and documents to the Property Trustee
pursuant to this Section 4.11(c) shall be solely for purposes of compliance
with this Section 4.11 and, if applicable, with Section 314(a) of the Trust
Indenture Act. The Property Trustee's receipt of such reports, information and
documents shall not constitute notice to it of the content thereof or any
matter determinable from the content thereof, including the Depositor's
compliance with any of its covenants hereunder, as to which the Property
Trustee is entitled to rely upon Officers' Certificates.
(d) The Trust shall maintain one or more bank accounts in the United
States, as defined for purposes of Treasury Regulations section 301.7701-7, in
the name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Notes held by the Property Trustee shall
be made directly to the Payment Account and no other funds of the Trust shall
be deposited in the Payment Account. The sole signatories for such accounts
(including the Payment Account) shall be designated by the Property Trustee.
ARTICLE V.
SECURITIES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
referred to in Section 2.3 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are Outstanding, the Depositor
shall be the sole beneficial owner of the Trust.
SECTION 5.2. Authorized Trust Securities.
The Trust shall be authorized to issue one series of Preferred Securities
having an aggregate Liquidation Amount of $75,000,000 and one series of Common
Securities having an aggregate Liquidation Amount of $2,380,000.
SECTION 5.3. Issuance of the Common Securities; Subscription and
Purchase of Notes.
On the Closing Date, an Administrative Trustee, on behalf of the Trust,
shall execute and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, evidencing an aggregate of 2,380
Common Securities having an aggregate Liquidation Amount of Two Million Three
Hundred Eighty Thousand Dollars ($2,380,000), against receipt by the Trust of
the aggregate purchase price of such Common Securities of Two Million Three
Hundred Eighty Thousand Dollars ($2,380,000). Contemporaneously therewith and
with the sale by the Trust to the Holders of an aggregate of 75,000 Preferred
Securities having an aggregate Liquidation Amount of Seventy-Five Million
Dollars ($75,000,000), an Administrative Trustee, on behalf of the Trust,
shall purchase from the Depositor Notes, to be registered in the name of the
Property Trustee on behalf of the Trust and having an aggregate principal
amount equal to Seventy-Seven Million Three Hundred Eighty Thousand Dollars
($77,380,000), and, in satisfaction of the purchase price for such Notes, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of Seventy-Seven Million Three Hundred Eighty Thousand Dollars
($77,380,000) (being the aggregate amount paid by the Holders for the
Preferred Securities, and the amount paid by the Depositor for the Common
Securities).
SECTION 5.4. The Securities Certificates.
(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $100,000 Liquidation Amount and integral multiples of $1,000
in excess thereof, and the Common Securities Certificates shall be issued in
minimum denominations of $10,000 Liquidation Amount and integral multiples of
$1,000 in excess thereof. The Securities Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee. Securities Certificates bearing the signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign such Securities Certificates on behalf of the
Trust shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Securities
Certificates or did not have such authority at the date of delivery of such
Securities Certificates.
(b) On the Closing Date, upon the written order of an authorized officer
of the Depositor, the Administrative Trustees shall cause Securities
Certificates to be executed on behalf of the Trust and delivered, without
further corporate action by the Depositor, in authorized denominations.
(c) The Preferred Securities issued to QIBs/QPs shall be, except as
provided in Section 5.6, Book-Entry Preferred Securities issued in the form of
one or more Global Preferred Securities registered in the name of the
Depositary, or its nominee and deposited with the Depositary or a custodian
for the Depositary for credit by the Depositary to the respective accounts of
the Depositary Participants thereof (or such other accounts as they may
direct). The Preferred Securities issued to a Person other than a QIB/QP shall
be issued in the form of Definitive Preferred Securities Certificates.
(d) A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. Such
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Trust Agreement. Upon written order of the Trust
signed by one Administrative Trustee, the Property Trustee shall authenticate
the Preferred Securities for original issue. The Property Trustee may appoint
an authenticating agent that is a U.S. Person acceptable to the Trust to
authenticate the Preferred Securities. A Common Security need not be so
authenticated and shall be valid upon execution by one or more Administrative
Trustees. The form of this certificate of authentication can be found in
Section 5.13.
SECTION 5.5. Rights of Holders.
The Trust Securities shall have no preemptive or similar rights and when
issued and delivered to Holders against payment of the purchase price therefor
will be fully paid and non-assessable by the Trust. Except as provided in
Section 5.11(b), the Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 5.6. Book-Entry Preferred Securities.
(a) A Global Preferred Security may be exchanged, in whole or in part,
for Definitive Preferred Securities Certificates registered in the names of
the Owners only if such exchange complies with Section 5.7 and (i) the
Depositary advises the Administrative Trustees and the Property Trustee in
writing that the Depositary is no longer willing or able properly to discharge
its responsibilities with respect to the Global Preferred Security, and no
qualified successor is appointed by the Administrative Trustees within ninety
(90) days of receipt of such notice, (ii) the Depositary ceases to be a
clearing agency registered under the Exchange Act and the Administrative
Trustees fail to appoint a qualified successor within ninety (90) days of
obtaining knowledge of such event, (iii) the Administrative Trustees at their
option advise the Property Trustee in writing that the Trust elects to
terminate the book-entry system through the Depositary or (iv) a Note Event of
Default has occurred and is continuing. Upon the occurrence of any event
specified in clause (i), (ii), (iii) or (iv) above, the Administrative
Trustees shall notify the Depositary and instruct the Depositary to notify all
Owners of Book-Entry Preferred Securities, the Delaware Trustee and the
Property Trustee of the occurrence of such event and of the availability of
the Definitive Preferred Securities Certificates to Owners of the Preferred
Securities requesting the same. Upon the issuance of Definitive Preferred
Securities Certificates, the Trustees shall recognize the Holders of the
Definitive Preferred Securities Certificates as Holders. Notwithstanding the
foregoing, if an Owner of a beneficial interest in a Global Preferred Security
wishes at any time to transfer an interest in such Global Preferred Security
to a Person other than a QIB/QP, such transfer shall be effected, subject to
the Applicable Depositary Procedures, in accordance with the provisions of
this Section 5.6 and Section 5.7, and the transferee shall receive a
Definitive Preferred Securities Certificate in connection with such transfer.
A holder of a Definitive Preferred Securities Certificate that is a QIB/QP
may, upon request and in accordance with the provisions of this Section 5.6
and Section 5.7, exchange such Definitive Preferred Securities Certificate for
a beneficial interest in a Global Preferred Security.
(b) If any Global Preferred Security is to be exchanged for Definitive
Preferred Securities Certificates or canceled in part, or if any Definitive
Preferred Securities Certificate is to be exchanged in whole or in part for
any Global Preferred Security, then either (i) such Global Preferred Security
shall be so surrendered for exchange or cancellation as provided in this
Article V or (ii) the aggregate Liquidation Amount represented by such Global
Preferred Security shall be reduced, subject to Section 5.4, or increased by
an amount equal to the Liquidation Amount represented by that portion of the
Global Preferred Security to be so exchanged or canceled, or equal to the
Liquidation Amount represented by such Definitive Preferred Securities
Certificates to be so exchanged for any Global Preferred Security, as the case
may be, by means of an appropriate adjustment made on the records of the
Securities Registrar, whereupon the Property Trustee, in accordance with the
Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender to the Administrative Trustees or the Securities
Registrar of any Global Preferred Security or Securities by the Depositary,
accompanied by registration instructions, the Administrative Trustees, or any
one of them, shall execute the Definitive Preferred Securities Certificates in
accordance with the instructions of the Depositary. None of the Securities
Registrar or the Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(c) Every Definitive Preferred Securities Certificate executed and
delivered upon registration or transfer of, or in exchange for or in lieu of,
a Global Preferred Security or any portion thereof shall be executed and
delivered in the form of, and shall be, a Global Preferred Security, unless
such Definitive Preferred Securities Certificate is registered in the name of
a Person other than the Depositary for such Global Preferred Security or a
nominee thereof.
(d) The Depositary or its nominee, as registered owner of a Global
Preferred Security, shall be the Holder of such Global Preferred Security for
all purposes under this Trust Agreement and the Global Preferred Security, and
Owners with respect to a Global Preferred Security shall hold such interests
pursuant to the Applicable Depositary Procedures. The Securities Registrar and
the Trustees shall be entitled to deal with the Depositary for all purposes of
this Trust Agreement relating to the Global Preferred Securities (including
the payment of the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities represented thereby and the giving of instructions or
directions by Owners of Book-Entry Preferred Securities represented thereby
and the giving of notices) as the sole Holder of the Book-Entry Preferred
Securities represented thereby and shall have no obligations to the Owners
thereof. None of the Trustees nor the Securities Registrar shall have any
liability in respect of any transfers effected by the Depositary.
(e) The rights of the Owners of the Book-Entry Preferred Securities shall
be exercised only through the Depositary and shall be limited to those
established by law, the Applicable Depositary Procedures and agreements
between such Owners and the Depositary and/or the Depositary Participants;
provided, that solely for the purpose of determining whether the Holders of
the requisite amount of Preferred Securities have voted on any matter provided
for in this Trust Agreement, to the extent that Preferred Securities are
represented by a Global Preferred Security, the Trustees may conclusively rely
on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Property Trustee by the Depositary
setting forth the Owners' votes or assigning the right to vote on any matter
to any other Persons either in whole or in part. To the extent that Preferred
Securities are represented by a Global Preferred Security, the initial
Depositary will make book-entry transfers among the Depositary Participants
and receive and transmit payments on the Preferred Securities that are
represented by a Global Preferred Security to such Depositary Participants,
and none of the Depositor or the Trustees shall have any responsibility or
obligation with respect thereto.
(f) To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Security, the Trustees shall give all such
notices and communications to the Depositary, and shall have no obligations to
the Owners.
SECTION 5.7. Registration of Transfer and Exchange of Preferred
Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the Corporate
Trust Office, a register or registers (the "Securities Register") in which the
registrar and transfer agent with respect to the Trust Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Person acting as the Property Trustee shall at all times also be the
Securities Registrar. The provisions of Article VIII shall apply to the
Property Trustee in its role as Securities Registrar.
(b) Subject to Section 5.7(d), upon surrender for registration of
transfer of any Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.7(f), the Administrative Trustees or any one
of them shall execute by manual or facsimile signature and deliver to the
Property Trustee, and the Property Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount as may be required by this Trust Agreement dated
the date of execution by such Administrative Trustee or Trustees. At the
option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificate to be exchanged at the office or agency maintained pursuant to
Section 5.7(f). Whenever any Preferred Securities Certificates are so
surrendered for exchange, the Administrative Trustees or any one of them shall
execute by manual or facsimile signature and deliver to the Property Trustee,
and the Property Trustee shall authenticate and deliver, the Preferred
Securities Certificates that the Holder making the exchange is entitled to
receive.
(c) The Securities Registrar shall not be required, (i) to issue,
register the transfer of or exchange any Preferred Security during a period
beginning at the opening of business fifteen (15) days before the day of
selection for redemption of such Preferred Securities pursuant to Article IV
and ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Preferred
Security so selected for redemption in whole or in part, except, in the case
of any such Preferred Security to be redeemed in part, any portion thereof not
to be redeemed.
(d) Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Securities
Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing and if such Preferred Securities Certificate is being
transferred to a QIB, accompanied by a certificate of the transferor
substantially in the form set forth as Exhibit E hereto.
(e) No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Property Trustee on
behalf of the Trust may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
(f) The Administrative Trustees shall designate an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and initially designate the Corporate
Trust Office as its office and agency for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor, the Property
Trustee and to the Holders of any change in the location of any such office or
agency.
(g) The Preferred Securities may only be transferred to a "Qualified
Purchaser" as such term is defined in Section 2(a)(51) of the Investment
Company Act.
(h) Neither the Property Trustee nor the Securities Registrar shall be
responsible for ascertaining whether any transfer hereunder complies with the
registration provisions of or any exemptions from the Securities Act,
applicable state securities laws or the applicable laws of any other
jurisdiction, ERISA, the Code or the Investment Company Act; provided, that if
a certificate is specifically required by the express terms of this Section
5.7 to be delivered to the Property Trustee or the Securities Registrar by a
Holder or transferee of a Security, the Property Trustee and the Securities
Registrar shall be under a duty to receive and examine the same to determine
whether or not the certificate substantially conforms on its face to the
requirements of this Trust Agreement and shall promptly notify the party
delivering the same if such certificate does not comply with such terms.
SECTION 5.8. Mutilated, Destroyed, Lost or Stolen Securities Certificates.
(a) If any mutilated Securities Certificate shall be surrendered to the
Securities Registrar together with such security or indemnity as may be
required by the Securities Registrar to save each of the Trustees harmless,
the Administrative Trustees, or any one of them, on behalf of the Trust, shall
execute and make available for delivery in exchange therefor a new Securities
Certificate of like class, tenor and denomination.
(b) If the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Securities Certificate
and there shall be delivered to the Securities Registrar such security or
indemnity as may be required by it to save each of the Trustees harmless, then
in the absence of notice that such Securities Certificate shall have been
acquired by a protected purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust, shall execute and make available for delivery,
and, with respect to Preferred Securities, the Property Trustee upon written
order the Trust executed by one Administrative Trustee shall authenticate, in
exchange for or in lieu of any such destroyed, lost or stolen Securities
Certificate, a new Securities Certificate of like class, tenor and
denomination.
(c) In connection with the issuance of any new Securities Certificate
under this Section 5.8, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith.
(d) Any duplicate Securities Certificate issued pursuant to this Section
5.8 shall constitute conclusive evidence of an undivided beneficial interest
in the assets of the Trust corresponding to that evidenced by the mutilated,
lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
(e) If any such mutilated, destroyed, lost or stolen Securities
Certificate has become or is about to become due and payable, the Depositor in
its discretion may provide the Property Trustee or Paying Agent, as
applicable, with the funds to pay such Trust Security and upon receipt of such
funds, the Property Trustee or Paying Agent, as applicable, shall pay such
Trust Security instead of issuing a new Securities Certificate.
(f) The provisions of this Section 5.8 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Securities Certificates.
SECTION 5.9. Persons Deemed Holders.
The Trustees and the Securities Registrar shall each treat the Person in
whose name any Securities Certificate shall be registered in the Securities
Register as the owner of such Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and none of the
Trustees and the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.10. Cancellation.
All Preferred Securities Certificates surrendered for registration of
transfer or exchange or for payment shall, if surrendered to any Person other
than the Property Trustee, be delivered to the Property Trustee, and any such
Preferred Securities Certificates and Preferred Securities Certificates
surrendered directly to the Property Trustee for any such purpose shall be
promptly canceled by it. The Administrative Trustees may at any time deliver
to the Property Trustee for cancellation any Preferred Securities Certificates
previously delivered hereunder that the Administrative Trustees may have
acquired in any manner whatsoever, and all Preferred Securities Certificates
so delivered shall be promptly canceled by the Property Trustee. No Preferred
Securities Certificates shall be executed and delivered in lieu of or in
exchange for any Preferred Securities Certificates canceled as provided in
this Section 5.10, except as expressly permitted by this Trust Agreement. All
canceled Preferred Securities Certificates shall be retained by the Property
Trustee in accordance with its customary practices.
SECTION 5.11. Ownership of Common Securities by Depositor.
(a) On the Closing Date, the Depositor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common Securities.
Neither the Depositor nor any successor Holder of the Common Securities may
transfer less than all the Common Securities, and the Depositor or any such
successor Holder may transfer the Common Securities only (i) in connection
with a consolidation or merger of the Depositor into another Person, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person (in which event such Common
Securities will be transferred to such surviving entity, transferee or lessee,
as the case may be), pursuant to Section 8.1 of the Indenture or (ii) to the
Depositor or an Affiliate of the Depositor, in each such case in compliance
with applicable law (including the Securities Act, and applicable state
securities and blue sky laws). To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT."
(b) Any Holder of the Common Securities shall be liable for the debts and
obligations of the Trust in the manner and to the extent set forth with
respect to the Depositor and agrees that it shall be subject to all
liabilities to which the Depositor may be subject and, prior to becoming such
a Holder, shall deliver to the Administrative Trustees an instrument of
assumption satisfactory to such Trustees.
SECTION 5.12. Restricted Legends.
(a) Each Preferred Security Certificate shall bear a legend in
substantially the following form:
"[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS PREFERRED SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A
TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC
OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO ANTHRACITE CAPITAL TRUST I OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SUCH PREFERRED SECURITIES
OR ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY
NOTIFIED THAT THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE
AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH
PREFERRED SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY
(I) TO THE TRUST OR (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED PURCHASER" (AS DEFINED IN SECTION 2(a)(51) OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933, AS
AMENDED), AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY PREFERRED
SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF
PREFERRED SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN
AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF
$1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH
PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH PREFERRED SECURITIES, OR ANY
INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE
NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH A "PLAN"), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY
PLAN'S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THIS PREFERRED SECURITY OR ANY INTEREST
THEREIN. ANY PURCHASER OR HOLDER OF THE PREFERRED SECURITIES OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND
HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE."
(b) The above legend shall not be removed from any of the Preferred
Securities Certificates unless there is delivered to the Property Trustee and
the Depositor satisfactory evidence, which may include an opinion of counsel,
as may be reasonably required to ensure that any future transfers thereof may
be made without restriction under the provisions of the Securities Act and
other applicable law. Upon provision of such satisfactory evidence, one or
more of the Administrative Trustees on behalf of the Trust shall execute and
deliver to the Property Trustee, and the Property Trustee shall deliver, at
the written direction of the Administrative Trustees and the Depositor,
Preferred Securities Certificates that do not bear the legend.
SECTION 5.13. Form of Certificate of Authentication.
The Property Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated: XXXXX FARGO BANK, NATIONAL ASSOCIATION, not
in its individual capacity, but
solely as Property Trustee
By:________________________________
Authorized signatory
ARTICLE VI.
MEETINGS; VOTING; ACTS OF HOLDERS
SECTION 6.1. Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities,
stating the time, place and purpose of the meeting, shall be given by the
Administrative Trustees pursuant to Section 10.8 to each Holder of Preferred
Securities, at such Holder's registered address, at least fifteen (15) days
and not more than ninety (90) days before the meeting. At any such meeting,
any business properly before the meeting may be so considered whether or not
stated in the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.
SECTION 6.2. Meetings of Holders of the Preferred Securities.
(a) No annual meeting of Holders is required to be held. The
Administrative Trustees, however, shall call a meeting of the Holders of the
Preferred Securities to vote on any matter upon the written request of the
Holders of at least twenty five percent (25%) in aggregate Liquidation Amount
of the Outstanding Preferred Securities and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a meeting of the
Holders of the Preferred Securities to vote on any matters as to which such
Holders are entitled to vote.
(b) The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative vote by the
Holders present, in person or by proxy, holding Preferred Securities
representing at least a Majority in Liquidation Amount of the Preferred
Securities held by the Holders present, either in person or by proxy, at such
meeting shall constitute the action of the Holders of the Preferred
Securities, unless this Trust Agreement requires a lesser or greater number of
affirmative votes.
SECTION 6.3. Voting Rights.
Holders shall be entitled to one vote for each $10,000 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.4. Proxies, Etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided, that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name
of the Property Trustee or one or more officers of the Property Trustee. Only
Holders of record shall be entitled to vote. When Trust Securities are held
jointly by several Persons, any one of them may vote at any meeting in person
or by proxy in respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint owners
or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting
to be executed by or on behalf of a Holder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
SECTION 6.5. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without
a meeting and without prior notice if Holders holding at least a Majority in
Liquidation Amount of all Preferred Securities entitled to vote in respect of
such action (or such lesser or greater proportion thereof as shall be required
by any other provision of this Trust Agreement) shall consent to the action in
writing; provided, that notice of such action is promptly provided to the
Holders of Preferred Securities that did not consent to such action. Any
action that may be taken by the Holders of all the Common Securities may be
taken without a meeting and without prior notice if such Holders shall consent
to the action in writing.
SECTION 6.6. Record Date for Voting and Other Purposes.
Except as provided in Section 6.10(a), for the purposes of determining
the Holders who are entitled to notice of and to vote at any meeting or to act
by written consent, or to participate in any distribution on the Trust
Securities in respect of which a record date is not otherwise provided for in
this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees may from time to time fix a date, not more than ninety
(90) days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.7. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent thereof duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Trust Agreement and conclusive in favor of the Trustees, if made in the
manner provided in this Section 6.7.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner that any
Trustee receiving the same deems sufficient.
(c) The ownership of Trust Securities shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Trust Security shall bind every
future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustees, the Administrative Trustees or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Trust Security.
(e) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
(f) If any dispute shall arise among the Holders or the Trustees with
respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, notice, consent, waiver or other Act of such
Holder or Trustee under this Article VI, then the determination of such matter
by the Property Trustee shall be conclusive with respect to such matter.
SECTION 6.8. Inspection of Records.
Upon reasonable written notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by any
Holder during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
SECTION 6.9. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of
the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Notes are held by the Property Trustee on behalf of
the Trust, the Property Trustee shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Note
Trustee, or exercise any trust or power conferred on the Property Trustee with
respect to the Notes, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture or waive compliance with any covenant or
condition under Section 10.7 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Notes shall be
due and payable or (iv) consent to any amendment, modification or termination
of the Indenture or the Notes, where such consent shall be required, without,
in each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities; provided, that
where a consent under the Indenture would require the consent of each holder
of Notes (or each Holder of Preferred Securities) affected thereby, no such
consent shall be given by the Property Trustee without the prior written
consent of each Holder of Preferred Securities. The Property Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders
of the Preferred Securities, except by a subsequent vote of the Holders of the
Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, obtain
an Opinion of Counsel experienced in such matters to the effect that such
action shall not cause the Trust to be taxable as a corporation or classified
as other than a grantor trust for U.S. federal income tax purposes,
notwithstanding the foregoing, any holder shall have the rights to change the
Interest Payment Date described in Section 6(m) of the Purchase Agreement.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of
the Preferred Securities, whether by way of amendment to the Trust Agreement
or otherwise or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities. Notwithstanding any other provision of
this Trust Agreement, no amendment to this Trust Agreement may be made if, as
a result of such amendment, it would cause the Trust to be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes.
SECTION 6.10. Acceleration of Maturity; Rescission of Annulment;
Waivers of Past Defaults.
(a) For so long as any Preferred Securities remain Outstanding, if, upon
a Note Event of Default, the Note Trustee fails or the holders of not less
than twenty five percent (25%) in principal amount of the outstanding Notes
fail to declare the principal of all of the Notes to be immediately due and
payable, the Holders of at least twenty five percent (25%) in Liquidation
Amount of the Preferred Securities then Outstanding shall have the right to
make such declaration by a notice in writing to the Property Trustee, the
Depositor and the Note Trustee. At any time after a declaration of
acceleration with respect to the Notes has been made and before a judgment or
decree for payment of the money due has been obtained by the Note Trustee as
provided in the Indenture, the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, by written notice to the Property Trustee,
the Depositor and the Note Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Note Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all of the Notes;
(B) any accrued Additional Interest on all of the Notes;
(C) the principal of and premium, if any, on any Notes that
have become due otherwise than by such declaration of acceleration
and interest and Additional Interest thereon at the rate borne by
the Notes; and
(D) all sums paid or advanced by the Note Trustee under the
Indenture and the reasonable compensation, expenses, disbursements
and advances of the Note Trustee, the Property Trustee and their
agents and counsel; and
(ii) all Note Events of Default, other than the non-payment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13 of the Indenture.
Upon receipt by the Property Trustee of written notice requesting such an
acceleration, or rescission and annulment thereof, by Holders of any part of
the Preferred Securities, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders of Outstanding Preferred Securities
on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such notice, whether or not such Holders remain
Holders after such record date; provided, that, unless such declaration of
acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day that is ninety (90) days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the
case may be, shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder of Outstanding Preferred Securities, or a proxy of a Holder, from
giving, after expiration of such ninety (90)-day period, a new written notice
of declaration of acceleration, or rescission and annulment thereof, as the
case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 6.10(a).
(b) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon a Note Event of Default specified in
paragraph (a) or (b) of Section 5.1 of the Indenture, any Holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.8 of the Indenture, for enforcement of
payment to such Holder of any amounts payable in respect of Notes having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Holder. Except as set forth in Section 6.10(a)
and this Section 6.10(b), the Holders of Preferred Securities shall have no
right to exercise directly any right or remedy available to the holders of, or
in respect of, the Notes.
(c) Notwithstanding paragraphs (a) and (b) of this Section 6.10, the
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Outstanding Preferred
Securities, waive any Note Event of Default, except any Note Event of Default
arising from the failure to pay any principal of or premium, if any, or
interest (including any Additional Interest) on the Notes (unless such Note
Event of Default has been cured and a sum sufficient to pay all matured
installments of interest and all principal and premium, if any, on all Notes
due otherwise than by acceleration has been deposited with the Note Trustee)
or a Note Event of Default in respect of a covenant or provision that under
the Indenture cannot be modified or amended without the consent of the holder
of each outstanding Note. Upon any such waiver, such Note Event of Default
shall cease to exist and any Note Event of Default arising therefrom shall be
deemed to have been cured for every purpose of the Indenture; but no such
waiver shall affect any subsequent Note Event of Default or impair any right
consequent thereon.
(d) Notwithstanding paragraphs (a) and (b) of this Section 6.10, the
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Outstanding Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon.
(e) The Holders of a Majority in Liquidation Amount of the Preferred
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee in
respect of this Trust Agreement or the Notes or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement; provided,
that, subject to Sections 8.5 and 8.7, the Property Trustee shall have the
right to decline to follow any such direction if the Property Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Property Trustee in good faith shall, by an officer or
officers of the Property Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly prejudicial
to the rights of Holders not party to such direction, and provided, further,
that nothing in this Trust Agreement shall impair the right of the Property
Trustee to take any action deemed proper by the Property Trustee and which is
not inconsistent with such direction.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association, duly
organized and validly existing under the laws of the United States of America;
(b) the Property Trustee has full power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation, duly formed
and validly existing under the laws of the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the legal,
valid and binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws affecting creditors' rights generally and to
general principles of equity;
(f) the execution, delivery and performance of this Trust Agreement have
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and do not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the respective
Articles of Association or By-laws of the Property Trustee or the Delaware
Trustee, (ii) violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the imposition of any lien on
any properties included in the Trust Property pursuant to the provisions of
any indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a party or
by which it is bound, or (iii) violate any applicable law, governmental rule
or regulation of the United States or the State of Delaware, as the case may
be, governing the banking, trust or general powers of the Property Trustee or
the Delaware Trustee or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation
of any of the transactions by the Property Trustee or the Delaware Trustee
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to
any governmental authority or agency under any existing law of the United
States or the State of Delaware governing the banking, trust or general powers
of the Property Trustee or the Delaware Trustee, as the case may be; and
(h) to the best of each of the Property Trustee's and the Delaware
Trustee's knowledge, there are no proceedings pending or threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders and the Trustees that:
(a) the Depositor is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation;
(b) the Depositor has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes the legal, valid and binding agreement of the
Depositor enforceable against the Depositor in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity;
(d) the Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the applicable Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Trust Agreement and the Holders will be, as of such date, entitled to the
benefits of this Trust Agreement;
(e) the execution, delivery and performance of this Trust Agreement have
been duly authorized by all necessary corporate or other action on the part of
the Depositor and do not require any approval of stockholders of the Depositor
and such execution, delivery and performance will not (i) violate the articles
or certificate of incorporation or by-laws (or other organizational documents)
of the Depositor or (ii) violate any applicable law, governmental rule or
regulation governing the Depositor or any material portion of its property or
any order, judgment or decree applicable to the Depositor or any material
portion of its property;
(f) neither the authorization, execution or delivery by the Depositor of
this Trust Agreement nor the consummation of any of the transactions by the
Depositor contemplated herein requires the consent or approval of, the giving
of notice to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any existing law
governing the Depositor or any material portion of its property; and
(g) there are no proceedings pending or, to the best of the Depositor's
knowledge, threatened against or affecting the Depositor or any material
portion of its property in any court or before any governmental authority,
agency or arbitration board or tribunal that, individually or in the
aggregate, would materially and adversely affect the Trust or would question
the right, power and authority of the Depositor, as the case may be, to enter
into or perform its obligations under this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Number of Trustees.
The number of Trustees shall be five (5); provided, that the Property
Trustee and the Delaware Trustee may be the same Person, in which case the
number of Trustees shall be four (4). The number of Trustees may be increased
or decreased by Act of the Holder of the Common Securities subject to Sections
8.2, 8.3, and 8.4. The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul, dissolve or terminate the Trust.
SECTION 8.2. Property Trustee Required.
There shall at all times be a Property Trustee hereunder with respect to
the Trust Securities. The Property Trustee shall be a corporation or national
banking association organized and doing business under the laws of the United
States or of any state thereof, authorized to exercise corporate trust powers,
having or having a parent that has a combined capital and surplus of at least
fifty million dollars ($50,000,000), subject to supervision or examination by
federal or state authority and having an office within the United States. If
any such Person publishes reports of condition at least annually pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section 8.2, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Property
Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.2, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
SECTION 8.3. Delaware Trustee Required.
(a) If required by the Delaware Statutory Trust Act, there shall at all
times be a Delaware Trustee with respect to the Trust Securities. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity that has its
principal place of business in the State of Delaware, otherwise meets the
requirements of applicable Delaware law and shall act through one or more
persons authorized to bind such entity. If at any time the Delaware Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.3, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article VIII. The Delaware Trustee shall have the same
rights, privileges and immunities as the Property Trustee.
(b) The Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth herein. The
Delaware Trustee shall be one of the trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Delaware
Statutory Trust Act and for taking such actions as are required to be taken by
a Delaware trustee under the Delaware Statutory Trust Act. The duties
(including fiduciary duties), liabilities and obligations of the Delaware
Trustee shall be limited to (a) accepting legal process served on the Trust in
the State of Delaware and (b) the execution of any certificates required to be
filed with the Secretary of State of the State of Delaware that the Delaware
Trustee is required to execute under Section 3811 of the Delaware Statutory
Trust Act and there shall be no other duties (including fiduciary duties) or
obligations, express or implied, at law or in equity, of the Delaware Trustee.
SECTION 8.4. Appointment of Administrative Trustees.
(a) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity. Each of the individuals identified as an "Administrative Trustee" in
the preamble of this Trust Agreement hereby accepts his or her appointment as
such.
(b) Except where a requirement for action by a specific number of
Administrative Trustees is expressly set forth in this Trust Agreement, any
act required or permitted to be taken by, and any power of the Administrative
Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.11, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
SECTION 8.5. Duties and Responsibilities of the Trustees.
(a) The rights, immunities, duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and there shall be no other
duties (including fiduciary duties) or obligations, express or implied, at law
or in equity, of the Trustees; provided, however, that if an Event of Default
known to the Property Trustee has occurred and is continuing, the Property
Trustee shall, prior to the receipt of directions, if any, from the Holders of
at least a Majority in Liquidation Amount of the Preferred Securities,
exercise such of the rights and powers vested in it by this Trust Agreement,
and use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require any of the Trustees to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its or their rights or powers,
if it or they shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.5. Nothing in this Trust Agreement shall be
construed to release any Administrative Trustee from liability for his or her
own negligent action, negligent failure to act; or his or her own willful
misconduct. To the extent that, at law or in equity, a Trustee has duties and
liabilities relating to the Trust or to the Holders, such Trustee shall not be
liable to the Trust or to any Holder for such Trustee's good faith reliance on
the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Trustees otherwise existing at law or in equity, are agreed by the Depositor
and the Holders to replace such other duties and liabilities of the Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms
hereof. Each Holder, by its acceptance of a Trust Security, agrees that it
will look solely to the revenue and proceeds from the Trust Property to the
extent legally available for distribution to it as herein provided and that
the Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any
Trust Security. This Section 8.5(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Trust Agreement.
(c) No provisions of this Trust Agreement shall be construed to relieve
the Property Trustee from liability with respect to matters that are within
the authority of the Property Trustee under this Trust Agreement for its own
negligent action, negligent failure to act or willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error or
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the Property
Trustee hereunder or under the Indenture, or exercising any trust or
power conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Notes and the Payment
Account shall be to deal with such Property in a similar manner as the
Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree in writing with
the Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the Payment
Account maintained by the Property Trustee pursuant to Section 3.1 and
except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Trustee or
the Depositor.
SECTION 8.6. Notices of Defaults and Extensions.
(a) Within ninety (90) days after the occurrence of a default actually
known to the Property Trustee, the Property Trustee shall transmit notice of
such default to the Holders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section 8.6, the term "default" means any event that is, or after notice or
lapse of time or both would become, an Event of Default.
(b) The Property Trustee shall not be charged with knowledge of any
default or Event of Default unless either (i) a Responsible Officer of the
Property Trustee shall have actual knowledge or (ii) the Property Trustee
shall have received written notice thereof from the Depositor, an
Administrative Trustee or a Holder.
(c) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received with respect to the Notes.
SECTION 8.7. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.5:
(a) the Property Trustee may conclusively rely and shall be protected in
acting or refraining from acting in good faith and in accordance with the
terms hereof upon any resolution, Opinion of Counsel, certificate, written
representation of an Administrative Trustee, a Holder or transferee,
certificate of auditors or any other resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds a provision ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to
which the Holders of the Preferred Securities are entitled to vote under the
terms of this Trust Agreement, the Property Trustee shall deliver a notice to
the Depositor requesting the Depositor's written instruction as to the course
of action to be taken and the Property Trustee shall take such action, or
refrain from taking such action, as the Property Trustee shall be instructed
in writing to take, or to refrain from taking, by the Depositor; provided,
that if the Property Trustee does not receive such instructions of the
Depositor within ten (10) Business Days after it has delivered such notice or
such reasonably shorter period of time set forth in such notice, the Property
Trustee may, but shall be under no duty to, take such action, or refrain from
taking such action, as the Property Trustee shall deem advisable and in the
best interests of the Holders, in which event the Property Trustee shall have
no liability except for its own negligence, bad faith or willful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate unless
otherwise expressly provided herein;
(d) any direction or act of an Administrative Trustee contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate executed
by such Administrative Trustee and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, re-filing or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Property Trustee, the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon and
in accordance with such advice; the Property Trustee shall have the right at
any time to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including reasonable attorneys' fees and
expenses) and liabilities that might be incurred by it in compliance with such
request or direction, including reasonable advances as may be requested by the
Property Trustee; provided, however, that nothing contained in this Section
8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence
of an Event of Default (of which the Property Trustee has knowledge (as
provided in Section 8.6(b) hereof)), of its obligation to exercise the rights
and powers vested in it by this Trust Agreement; provided, further, that
nothing contained in this Section 8.7(g) shall prevent the Property Trustee
from exercising its rights under Section 8.11 hereof;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, unless requested in writing to do so by one or more
Holders, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Property Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Depositor,
personally or by agent or attorney;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents, attorneys, custodians or nominees and the Property Trustee shall not
be responsible for any negligence or misconduct on the part of any such agent,
attorney, custodian or nominee appointed with due care by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right hereunder, the Property Trustee (i) may request
instructions from the Holders (which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust Securities
as would be entitled to direct the Property Trustee under this Trust Agreement
in respect of such remedy, right or action), (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions are
received and (iii) shall be protected in acting in accordance with such
instructions;
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement;
(l) without prejudice to any other rights available to the Property
Trustee under applicable law, when the Property Trustee incurs expenses or
renders services in connection with a Bankruptcy Event, such expenses
(including legal fees and expenses of its agents and counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors rights
generally;
(m) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely on an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor;
and
(n) in the event that the Property Trustee is also acting as Paying
Agent, Authenticating Agent (as defined in the Indenture), Securities
Registrar or Calculation Agent hereunder, the rights and protections afforded
the Property Trustee pursuant to this Article VIII shall also be afforded such
Paying Agent, Authenticating Agent, Securities Registrar or Calculation Agent.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or
acts, or to exercise any such right, power, duty or obligation.
SECTION 8.8. Delegation of Power.
Any Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 its, his or her power
for the purpose of executing any documents contemplated in Section 2.5. The
Trustees shall have power to delegate from time to time to such of their
number or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
SECTION 8.9. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and except as provided in the definition of the term "Outstanding"
in Article I, may otherwise deal with the Trust with the same rights it would
have if it were not a Trustee or such other agent.
SECTION 8.10. Compensation; Reimbursement; Indemnity.
The Depositor agrees:
(a) to pay to the Trustees from time to time such reasonable compensation
for all services rendered by them hereunder as may be agreed by the Depositor
and the Trustees from time to time (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in accordance with
any provision of this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of their agents and counsel), except any
such expense, disbursement or advance as may be attributable to their gross
negligence, bad faith or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee or any Affiliate of any Trustee and (iv) any employee or agent of the
Trust (referred to herein as an "Indemnified Person") from and against any
loss, damage, liability, tax (other than income, franchise or other taxes
imposed on amounts paid pursuant to Section -------- 8.10(a) or (b) hereof),
penalty, expense or claim of any kind or nature whatsoever incurred without
negligence, bad faith or --- willful misconduct on its part, arising out of or
in connection with the acceptance or administration of the Trust hereunder,
including the advancement of funds to cover the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trust shall have no payment, reimbursement or indemnity obligations
to the Trustees under this Section 8.10. The provisions of this Section 8.10
shall survive the termination of this Trust Agreement and the earlier removal
or resignation of any Trustee.
No Trustee may claim any Lien on any Trust Property whether before or
after termination of the Trust as a result of any amount due pursuant to this
Section 8.10.
To the fullest extent permitted by law, in no event shall the Property
Trustee and the Delaware Trustee be liable for any indirect, special, punitive
or consequential loss or damage of any kind whatsoever, including, but not
limited to, lost profits, even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
In no event shall the Property Trustee and the Delaware Trustee be liable
for any failure or delay in the performance of its obligations hereunder
because of circumstances beyond its control, including, but not limited to,
acts of God, flood, war (whether declared or undeclared), terrorism, fire,
riot, embargo, government action, including any laws, ordinances, regulations,
governmental action or the like which delay, restrict or prohibit the
providing of the services contemplated by this Trust Agreement.
SECTION 8.11. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Trustee and no appointment of a
successor Trustee pursuant to this Article VIII shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.12.
(b) A Trustee may resign at any time by giving written notice thereof to
the Depositor and, in the case of the Property Trustee and the Delaware
Trustee, to the Holders.
(c) Unless an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed
(with or without cause) at any time by Act of the Holder of Common Securities.
If an Event of Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee, or both of them, may be removed (with or
without cause) at such time by Act of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, delivered to the removed
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed (with or without cause) only by Act of
the Holder of the Common Securities at any time.
(d) If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
reason, at a time when no Event of Default shall have occurred and be
continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities, shall promptly appoint a successor Trustee or Trustees, and
such successor Trustee and the retiring Trustee shall comply with the
applicable requirements of Section 8.12. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when an Event of Default shall have occurred and be continuing, the
Holders of the Preferred Securities, by Act of the Holders of a Majority in
Liquidation Amount of the Preferred Securities, shall promptly appoint a
successor Property Trustee or Delaware Trustee, and such successor Property
Trustee or Delaware Trustee and the retiring Property Trustee or Delaware
Trustee shall comply with the applicable requirements of Section 8.12. If an
Administrative Trustee shall resign, be removed or become incapable of acting
as Administrative Trustee, at a time when an Event of Default shall have
occurred and be continuing, the Holder of the Common Securities by Act of the
Holder of Common Securities shall promptly appoint a successor Administrative
Trustee and such successor Administrative Trustee and the retiring
Administrative Trustee shall comply with the applicable requirements of
Section 8.12. If no successor Trustee shall have been so appointed by the
Holder of the Common Securities or Holders of the Preferred Securities, as the
case may be, and accepted appointment in the manner required by Section 8.12
within thirty (30) days after the giving of a notice of resignation by a
Trustee, the removal of a Trustee, or a Trustee becoming incapable of acting
as such Trustee, any Holder who has been a Holder of Preferred Securities for
at least six (6) months may, on behalf of himself and all others similarly
situated, and any resigning Trustee may, in each case, at the expense of the
Depositor, petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(e) The Depositor shall give notice of each resignation and each removal
of the Property Trustee or the Delaware Trustee and each appointment of a
successor Property Trustee or Delaware Trustee to all Holders in the manner
provided in Section 10.8. Each notice shall include the name of the successor
Property Trustee or Delaware Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Holder of Common
Securities, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act of the
remaining Administrative Trustees if there are at least two of them or (ii)
otherwise by the Holder of the Common Securities (with the successor in each
case being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Sections 8.3 and 8.4).
(g) Upon the appointment of a successor Delaware Trustee, such successor
Delaware Trustee shall file a Certificate of Amendment to the Certificate of
Trust in accordance with Section 3810 of the Delaware Statutory Trust Act.
SECTION 8.12. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, each
successor Trustee shall execute and deliver to the Depositor and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Trust or any successor Trustee such retiring
Trustee shall, upon payment of its charges, duly assign, transfer and deliver
to such successor Trustee all Trust Property, all proceeds thereof and money
held by such retiring Trustee hereunder with respect to the Trust Securities
and the Trust.
(b) Upon request of any such successor Trustee, the Trust (or the
retiring Trustee if requested by the Depositor) shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article VIII.
SECTION 8.13. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided, that such Person shall
be otherwise qualified and eligible under this Article VIII.
SECTION 8.14. Not Responsible for Recitals, Issuance of Securities
or Representations.
The recitals contained herein and in the Securities Certificates shall be
taken as the statements of the Trust and the Depositor, and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the title to, or value or condition of, the property of
the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Notes or the Trust Securities. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Notes. It is expressly understood and agreed by the parties hereto that
insofar as any document, agreement or certificate is executed on behalf of the
Trust by any Trustee (i) such document, agreement or certificate is executed
and delivered by such Trustee, not in its individual capacity but solely as
Trustee under this Trust Agreement in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings and
agreements made on the part of the Trust is made and intended not as
representations, warranties, covenants, undertakings and agreements by any
Trustee in its individual capacity but is made and intended for the purpose of
binding only the Trust and (iii) under no circumstances shall any Trustee in
its individual capacity be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Trust under this Trust Agreement or any other document, agreement or
certificate.
SECTION 8.15. Property Trustee May File Proofs of Claim.
(a) In case of any Bankruptcy Event (or event that with the passage of
time would become a Bankruptcy Event) relative to the Trust or any other
obligor upon the Trust Securities or the property of the Trust or of such
other obligor or their creditors, the Property Trustee (irrespective of
whether any Distributions on the Trust Securities shall then be due and
payable and irrespective of whether the Property Trustee shall have made any
demand on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee first any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property
Trustee.
(b) Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.16. Reports to the Property Trustee.
(a) The Depositor and the Administrative Trustees shall deliver to the
Property Trustee, not later than forty five (45) days after the end of each of
the first three fiscal quarters of the Depositor and not later than ninety
(90) days after the end of each fiscal year of the Trust ending after the date
of this Trust Agreement, an Officers' Certificate covering the preceding
fiscal year, stating whether or not to the knowledge of the signers thereof
the Depositor and the Trust are in default in the performance or observance of
any of the terms, provisions and conditions of this Trust Agreement (without
regard to any period of grace or requirement of notice provided hereunder)
and, if the Depositor or the Trust shall be in default, specifying all such
defaults and the nature and status thereof of which they have knowledge.
(b) The Depositor shall furnish (i) to the Property Trustee; (ii) Taberna
Capital Management, LLC (at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 or such other address as designated by Taberna Capital Management, LLC);
and (iii) any Owner of the Preferred Securities reasonably identified to the
Depositor and the Trust (which identification may be made either by such Owner
or by Taberna Capital Management, LLC) a duly completed and executed
certificate substantively and substantially in the form attached hereto as
Exhibit F, including the financial statements referenced in such Exhibit,
which certificate and financial statements shall be so furnished by the
Depositor not later than forty five (45) days after the end of each of the
first three fiscal quarters of each fiscal year of the Depositor and not later
than ninety (90) days after the end of each fiscal year of the Depositor to
the extent such statements are not available via XXXXX.
The Property Trustee may obtain all reports, certificate and information,
which it is entitled to obtain under each of the Operative Documents.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
October 30, 2040 (the "Expiration Date"), and the Trust Property shall be
liquidated in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event", upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the Holder of
the Common Securities, unless the Depositor shall have transferred the Common
Securities as provided by Section 5.11, in which case this provision shall
refer instead to any such successor Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Holder of the
Common Securities at any time to dissolve the Trust and, after satisfaction of
any liabilities of the Trust as required by applicable law and in accordance
with written instructions of the Administrative Trustees, to distribute the
Notes to Holders in exchange for the Preferred Securities (which direction is
optional and wholly within the discretion of the Holder of the Common
Securities);
(c) the redemption of all of the Preferred Securities in connection with
the payment at maturity or redemption of all the Notes; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
(a) The respective obligations and responsibilities of the Trustees and
the Trust shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Holders of all amounts required to be
distributed hereunder upon the liquidation of the Trust pursuant to Section
9.4, or upon the redemption of all of the Trust Securities pursuant to Section
4.2; (b) the satisfaction of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Holders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in Section 9.2(a), (b) or (d)
occurs or upon the Expiration Date, the Trust shall be liquidated by the
Administrative Trustees as expeditiously as the Administrative Trustees shall
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to each Holder a Like
Amount of Notes, subject to Section 9.4(d). Notice of liquidation shall be
given by the Administrative Trustees not less than thirty (30) nor more than
sixty (60) days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
such notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and (subject to
Section 9.4(d)) any Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Notes; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Securities Certificates for Notes, or if
Section 9.4(d) applies, receive a Liquidation Distribution, as the
Administrative Trustees shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Notes to Holders, the
Property Trustee, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish a record date for
such distribution (which shall not be more than forty five (45) days prior to
the Liquidation Date nor prior to the date on which notice of such liquidation
is given to the Holders) and establish such procedures as it shall deem
appropriate to effect the distribution of Notes in exchange for the
Outstanding Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding,
(ii) certificates representing a Like Amount of Notes will be issued to
Holders of Securities Certificates, upon surrender of such Certificates to the
exchange agent for exchange, (iii) the Depositor shall use its best efforts to
have the Notes listed on the New York Stock Exchange or on such other
exchange, interdealer quotation system or self-regulatory organization on
which the Preferred Securities are then listed, if any, (iv) Securities
Certificates not so surrendered for exchange will be deemed to represent a
Like Amount of Notes bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on such Securities Certificates until
such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Securities Certificates with respect to such Notes) and (v) all rights of
Holders holding Trust Securities will cease, except the right of such Holders
to receive Notes upon surrender of Securities Certificates.
(d) Notwithstanding the other provisions of this Section 9.4, if
distribution of the Notes in the manner provided herein is determined by the
Property Trustee not to be permitted or practical, the Trust Property shall be
liquidated, and the Trust shall be wound up by the Administrative Trustees in
such manner as the Administrative Trustees determines. In such event, Holders
will be entitled to receive out of the assets of the Trust available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the Liquidation Amount
per Trust Security plus accumulated and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"). If, upon
any such winding up the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be
paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities will be entitled to receive Liquidation Distributions upon
any such winding up pro rata (based upon Liquidation Amounts) with Holders of
all Trust Securities, except that, if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any Person except pursuant to this Article
IX. At the request of the Holders of the Common Securities, without the
consent of the Holders of the Preferred Securities, the Trust may merge with
or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that:
(a) such successor entity either (i) expressly assumes all of the
obligations of the Trust under this Trust Agreement with respect to the
Preferred Securities or (ii) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities
(such other Securities, the "Successor Securities") so long as the Successor
Securities have the same priority as the Preferred Securities with respect to
distributions and payments upon liquidation, redemption and otherwise;
(b) a trustee of such successor entity possessing substantially the same
powers and duties as the Property Trustee is appointed to hold the Notes;
(c) if the Preferred Securities or the Notes are rated, such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not cause the Preferred Securities or the Notes (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization that then assigns a rating to the Preferred Securities or the
Notes;
(d) the Preferred Securities are listed, or any Successor Securities will
be listed upon notice of issuance, on any national securities exchange or
interdealer quotation system on which the Preferred Securities are then
listed, if any;
(e) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect;
(f) such successor entity has a purpose substantially identical to that
of the Trust;
(g) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (i) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Preferred Securities
(including any Successor Securities) in any material respect; (ii) following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor such successor entity will be required to
register as an "investment company" under the Investment Company Act and (iii)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Trust (or the successor entity) will continue to be
classified as a grantor trust for U.S. federal income tax purposes; and
(h) the Depositor or its permitted transferee owns all of the common
securities of such successor entity.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of all of the Preferred Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties
and assets substantially as an entirety to any other Person or permit any
other entity to consolidate, amalgamate, merge with or into, or replace, the
Trust if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be taxable
as a corporation or classified as other than a grantor trust for United States
federal income tax purposes or cause the Notes to be treated as other than
indebtedness of the Depositor for United States federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, bankruptcy, termination,
dissolution or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor annul, dissolve or terminate the Trust nor entitle the legal
representatives or heirs of such Person or any Holder for such Person, to
claim an accounting, take any action or bring any proceeding in any court for
a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION 10.2. Agreed Tax Treatment of Trust and Trust Securities.
The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, such Trust Security intend and agree to
treat the Trust as a grantor trust for United States federal, state and local
tax purposes, and to treat the Trust Securities (including all payments and
proceeds with respect to such Trust Securities) as undivided beneficial
ownership interests in the Trust Property (and payments and proceeds
therefrom, respectively) for United States federal, state and local tax
purposes and to treat the Notes as indebtedness of the Depositor for United
States federal, state and local tax purposes. The provisions of this Trust
Agreement shall be interpreted to further this intention and agreement of the
parties.
SECTION 10.3. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Administrative Trustees and the Holder of all the Common
Securities, without the consent of any Holder of the Preferred Securities, (i)
to cure any ambiguity, correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will neither be taxable as a corporation nor be classified as other than
a grantor trust for United States federal income tax purposes at all times
that any Trust Securities are Outstanding or to ensure that the Notes are
treated as indebtedness of the Depositor for United States federal income tax
purposes, or to ensure that the Trust will not be required to register as an
"investment company" under the Investment Company Act or (iii) to add to the
covenants, restrictions or obligations of the Depositor; provided, that in the
case of clauses (i), (ii) or (iii), such action shall not adversely affect in
any material respect the interests of any Holder.
(b) Except as provided in Section 10.3(c), any provision of this Trust
Agreement may be amended by the Property Trustee, the Administrative Trustees
and the Holder of all of the Common Securities and with (i) the consent of
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not cause the Trust to be
taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes or affect the treatment of the Notes
as indebtedness of the Depositor for United States federal income tax purposes
or affect the Trust's exemption from status (or from any requirement to
register) as an "investment company" under the Investment Company Act. Each
party hereto acknowledges that (i) each Holder of Preferred Securities has
been granted the right described in Section 6(m) of its respective Purchase
Agreement and (ii) prior to or upon the election to exercise such right by any
such Holder, the Trust Agreement will need to be amended in order to include
certain provisions to effectuate such right. If, at the time any Holder of
Preferred Securities elects to exercise such right, the Trust Agreement has
not been so amended, the Property Trustee, the Administrative Trustees, the
Holder of all of the Common Securities and each Holder of Preferred Securities
each agrees, without prejudice to Section 10.3(f), to use commercially
reasonable efforts to so amend the Trust Agreement upon such election.
(c) Notwithstanding any other provision of this Trust Agreement, without
the consent of each Holder, this Trust Agreement may not be amended to (i)
change the accrual rate, amount, currency or timing of any Distribution on or
the redemption price of the Trust Securities or otherwise adversely affect the
amount of any Distribution or other payment required to be made in respect of
the Trust Securities as of a specified date, except as set forth in the last
sentence of Section 10.3(b) above, (ii) restrict or impair the right of a
Holder to institute suit for the enforcement of any such payment on or after
such date, (iii) reduce the percentage of aggregate Liquidation Amount of
Outstanding Preferred Securities, the consent of whose Holders is required for
any such amendment, or the consent of whose Holders is required for any waiver
of compliance with any provision of this Trust Agreement or of defaults
hereunder and their consequences provided for in this Trust Agreement; (iv)
impair or adversely affect the rights and interests of the Holders in the
Trust Property, or permit the creation of any Lien on any portion of the Trust
Property; or (v) modify the definition of "Outstanding," this Section 10.3(c),
Sections 4.1, 4.2, 4.3, 6.10(e) or Article IX.
(d) Notwithstanding any other provision of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
that would cause the Trust to be taxable as a corporation or to be classified
as other than a grantor trust for United States federal income tax purposes or
that would cause the Notes to fail or cease to be treated as indebtedness of
the Depositor for United States federal income tax purposes or that would
cause the Trust to fail or cease to qualify for the exemption from status (or
from any requirement to register) as an "investment company" under the
Investment Company Act.
(e) If any amendment to this Trust Agreement is made, the Administrative
Trustees or the Property Trustee shall promptly provide to the Depositor and
the Note Trustee a copy of such amendment.
(f) No Trustee shall be required to enter into any amendment to this
Trust Agreement that affects its own rights, duties or immunities under this
Trust Agreement. The Trustees shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement and all conditions
precedent herein provided for relating to such action have been met.
(g) No amendment or modification to this Trust Agreement that adversely
affects in any material respect the rights, duties, liabilities, indemnities
or immunities of the Delaware Trustee hereunder shall be permitted without the
prior written consent of the Delaware Trustee.
SECTION 10.4. Separability.
If any provision in this Trust Agreement or in the Securities
Certificates shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as similar as
possible to the provision at issue.
SECTION 10.5. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS TRUST AGREEMENT ANY
PROVISION OF THE LAWS (COMMON OR STATUTORY) OF THE STATE OF DELAWARE
PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH
THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY
OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE
REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL
PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR
EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO
INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING
TO THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS
OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH
OR REFERENCED IN THIS AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE TRUST.
The parties hereto hereby consent to (i) the non-exclusive jurisdiction
of the courts of the State of Delaware and any Federal court sitting in
Wilmington, Delaware, and (ii) service of process by certified mail. The
foregoing shall not preclude any party from bringing an action in any other
jurisdiction or from serving process in any other legal means.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust and any Trustee, including any
successor by operation of law. Except in connection with a transaction
involving the Depositor that is permitted under Article VIII of the Indenture
and pursuant to which the assignee agrees in writing to perform the
Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement
SECTION 10.8. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon any Holder or the Depositor may be given or served in
writing delivered in person, or by reputable, overnight courier, by telecopy
or by deposit thereof, first-class postage prepaid, in the United States mail,
addressed, (a) in the case of a Holder of Preferred Securities, to such Holder
as such Holder's name and address may appear on the Securities Register; and
(b) in the case of the Holder of all the Common Securities or the Depositor,
to Anthracite Capital, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Chief Financial Officer, or to such other address as may be
specified in a written notice by the Holder of all the Common Securities or
the Depositor, as the case may be, to the Property Trustee. Such report,
notice, demand or other communication to or upon a Holder or the Depositor
shall be deemed to have been given when received in person, within one (1)
Business Day following delivery by overnight courier, when telecopied with
receipt confirmed, or within three (3) Business Days following delivery by
mail, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
(b) Any notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Property Trustee, the Delaware Trustee, the Administrative Trustees or the
Trust shall be given in writing by deposit thereof, first-class postage
prepaid, in the U.S. mail, personal delivery or facsimile transmission,
addressed to such Person as follows: (i) with respect to the Property Trustee
to Xxxxx Fargo Bank, National Association, 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services - Anthracite
Capital Trust I, facsimile no. (000) 000-0000, (ii) with respect to the
Delaware Trustee, to Xxxxx Fargo Delaware Trust Company, 000 Xxxxx Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services - Anthracite Capital Trust I, facsimile no. (000) 000-0000, (iii)
with respect to the Administrative Trustees, to them at the address above for
notices to the Depositor, marked "Attention: Administrative Trustees of
Anthracite Capital Trust I", and (iv) with respect to the Trust, to its
principal executive office specified in Section 2.2, with a copy to the
Property Trustee. Such notice, demand or other communication to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing
by the Trust, the Property Trustee or the Administrative Trustees.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Trust has been
terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any Bankruptcy Law or otherwise
join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. If the Depositor takes action in violation of this Section
10.9, the Property Trustee agrees, for the benefit of Holders, that at the
expense of the Depositor, it shall file an answer with the applicable
bankruptcy court or otherwise properly contest the filing of such petition by
the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action
and should be estopped and precluded therefrom and such other defenses, if
any, as counsel for the Property Trustee or the Trust may assert.
SECTION 10.10. Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement as of the day and year first above written.
ANTHRACITE CAPITAL, INC.,
as Depositor
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX FARGO BANK, NATIONAL ASSOCIATION, XXXXX FARGO DELAWARE TRUST
as Property Trustee COMPANY, as Delaware Trustee
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President Title: Vice President
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxxx
---------------------------- ----------------------------
Administrative Trustee Administrative Trustee
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxx
----------------------------
Administrative Trustee
Name: Xxxxxxx X. Xxxx
Exhibit A
CERTIFICATE OF TRUST
OF
ANTHRACITE CAPITAL TRUST I
This Certificate of Trust of Anthracite Capital Trust I (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. ss.3801 et seq.) (the ------- -- --- "Act").
1. Name. The name of the statutory trust formed by this Certificate of
Trust is: Anthracite Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with its principal place of business in the State of Delaware are Xxxxx
Fargo Delaware Trust Company, 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services.
3. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned trustee has executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
XXXXX FARGO DELAWARE TRUST COMPANY, not in
its individual capacity, but solely as Delaware
Trustee
By: ---------------------------------------------
Name:
Title:
Exhibit B
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM
REGISTRATION. THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
ANTHRACITE CAPITAL TRUST I
Common Securities
(liquidation amount $1,000 per Common Security)
Anthracite Capital Trust I, a statutory trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Anthracite Capital,
Inc., a Maryland corporation (the "Holder") is the registered owner of 2,380
common securities of the Trust representing undivided common beneficial
interests in the assets of the Trust and designated the Anthracite Capital
Trust I Common Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). Except in accordance with Section 5.11 of the Trust
Agreement (as defined below), the Common Securities are not transferable and,
to the fullest extent permitted by law, any attempted transfer hereof other
than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Trust Agreement of
the Trust, dated as of September 26, 2005 as the same may be amended from time
to time (the "Trust Agreement"), among Anthracite Capital, Inc., as Depositor,
Xxxxx Fargo Bank, National Association, as Property Trustee, Xxxxx Fargo
Delaware Trust Company, as Delaware Trustee, the Administrative Trustees named
therein and the Holders, from time to time, of the Trust Securities. The Trust
will furnish a copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed on behalf of the Trust this certificate this 26th day of September,
2005.
ANTHRACITE CAPITAL TRUST I
By: --------------------------------------
Name:
Administrative Trustee
Exhibit C
[FORM OF PREFERRED SECURITIES CERTIFICATE]
"[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS PREFERRED SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A
NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT, AND NO
TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC
OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO ANTHRACITE CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND SUCH PREFERRED SECURITIES OR ANY
INTEREST THEREIN MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF
THE PREFERRED SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT.
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES
FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED
SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE
TRUST OR (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
PURCHASER" (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED,) OR A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT OF 1933, AS AMENDED) AND (B) THE HOLDER WILL
NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED
SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE
LIQUIDATION AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
NOT TO BE THE HOLDER OF SUCH PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH PREFERRED
SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE
BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") (EACH A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO PERSON
INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THIS PREFERRED
SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER OF THE PREFERRED
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN
THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.
Certificate Number Aggregate Liquidation Amount
Preferred Securities
CUSIP NO.
03703E AA 1
Certificate Evidencing Preferred Securities
of
ANTHRACITE CAPITAL TRUST I
Preferred Securities
(liquidation amount $1,000 per Preferred Security)
Anthracite Capital Trust I, a statutory trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that _____________, (the
"Holder") is the registered owner of 75,000 Preferred Securities [if the
Preferred Security is a Global Security, then insert - or such other number of
Preferred Securities represented hereby as may be set forth in the records of
the Securities Registrar hereinafter referred to in accordance with the Trust
Agreement (as defined below)] of the Trust representing an undivided preferred
beneficial interest in the assets of the Trust and designated the Anthracite
Capital Trust I Preferred Securities, (liquidation amount $1,000 per Preferred
Security) (the "Preferred Securities"). Subject to the terms of the Trust
Agreement (as defined below), the Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer as provided in Section 5.7 of the Trust Agreement (as defined below).
The designations, rights, privileges, restrictions, preferences and other
terms and provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust, dated as of September 26, 2005, as
the same may be amended from time to time (the "Trust Agreement"), among
Anthracite Capital, Inc., as Depositor, Xxxxx Fargo Bank, National
Association, as Property Trustee, Xxxxx Fargo Delaware Trust Company, as
Delaware Trustee, the Administrative Trustees named therein and the Holders,
from time to time, of the Trust Securities. The Trust will furnish a copy of
the Trust Agreement to the Holder without charge upon written request to the
Property Trustee at its Corporate Trust Office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
This Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Schedules and Exhibits thereto.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed on behalf of the Trust this certificate this 26th day of September,
2005.
ANTHRACITE CAPITAL TRUST I
By:
-----------------------------------------------
Name:
Administrative Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, not
in its individual capacity, but solely as Property
Trustee
By:
-----------------------------------------------
Authorized signatory
[FORM OF REVERSE OF SECURITY]
The Trust promises to pay Distributions from September 26, 2005, or from
the most recent Distribution Date to which Distributions have been paid or
duly provided for, quarterly in arrears on January 30, April 30, July 30 and
October 30 of each year, commencing on October 30, 2005, at a fixed rate equal
to 7.4975% through the interest payment date on October 2015, and thereafter
at a variable rate equal to LIBOR plus 2.90% per annum of the Liquidation
Amount of the Preferred Securities represented by this Preferred Securities
Certificate, together with any Additional Interest Amounts, in respect to such
period.
Distributions on the Trust Securities shall be made by the Paying Agent
from the Payment Account and shall be payable on each Distribution Date only
to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
Distributions on the Securities must be paid on the dates payable to the
extent that the Trust has funds available for the payment of such
Distributions in the Payment Account of the Trust. The Trust's funds available
for Distribution to the Holders of the Preferred Securities will be limited to
payments received from the Depositor.
During an Event of Default, the Depositor shall not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Depositor's Equity Interests
(as defined in the Indenture) or (ii) make any payment of principal of or any
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Depositor that rank pari passu in all respects with or
junior in interest to the Notes (other than (a) repurchases, redemptions or
other acquisitions of Equity Interests of the Depositor in connection with (1)
any employment contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants,
(2) a dividend reinvestment or stockholder stock purchase or similar plan with
respect to any Equity Interests or (3) the issuance of Equity Interests of the
Depositor (or securities convertible into or exercisable for such Equity
Interests) as consideration in an acquisition transaction entered into prior
to the applicable Event of Default, (b) as a result of an exchange or
conversion of any class or series of the Depositor's Equity Interests (or any
Equity Interests of a Subsidiary (as defined in the Indenture) of the
Depositor) for any class or series of the Depositor's Equity Interests or of
any class or series of the Depositor's indebtedness for any class or series of
the Depositor's Equity Interests, (c) the purchase of fractional interests in
Equity Interests of the Depositor pursuant to the conversion or exchange
provisions of such Equity Interests or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any Rights
Plan (as defined in the Indenture), the issuance of rights, Equity Interests
or other property under any Rights Plan, or the redemption or repurchase of
rights pursuant thereto or (e) any dividend in the form of Equity Interests,
warrants, options or other rights where the dividend Equity Interests or the
Equity Interests issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid or ranks
pari passu with or junior to such Equity Interests).
On each Note Redemption Date, on the stated maturity (or any date of
principal repayment upon early maturity) of the Notes and on each other date
on (or in respect of) which any principal on the Notes is repaid, the Trust
will be required to redeem a Like Amount of Trust Securities at the Redemption
Price. Under the Indenture, the Notes may be redeemed by the Depositor on any
Interest Payment Date, at the Depositor's option, on or after October 30, 2010
in whole or in part from time to time at the Optional Note Redemption Price of
the principal amount thereof or the redeemed portion thereof, as applicable,
together, in the case of any such redemption, with accrued interest, including
any Additional Interest, to but excluding the date fixed for redemption. The
Notes may also be redeemed by the Depositor, at its option, at any time, in
whole but not in part, upon the occurrence of an Investment Company Event or a
Tax Event at the Special Note Redemption Price; provided, that such Investment
Company Event or a Tax Event is continuing on the Redemption Date.
The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity of Notes. Redemptions of the Trust
Securities (or portion thereof) shall be made and the Redemption Price shall
be payable on each Redemption Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
Payments of Distributions (including any Additional Interest Amounts),
the Redemption Price, Liquidation Amount or any other amounts in respect of
the Preferred Securities shall be made by wire transfer at such place and to
such account at a banking institution in the United States as may be
designated in writing at least ten (10) Business Days prior to the date for
payment by the Person entitled thereto unless proper written transfer
instructions have not been received by the relevant record date, in which case
such payments shall be made by check mailed to the address of such Person as
such address shall appear in the Security Register. If any Preferred
Securities are held by a Depositary, such Distributions shall be made to the
Depositary in immediately available funds.
The indebtedness evidenced by the Notes is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Debt (as defined in the Indenture), and this Security is
issued subject to the provisions of the Indenture with respect thereto.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Securities Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-----------------------------
Signature:
------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
Exhibit D
Junior Subordinated Indenture
Exhibit E
Form of Transferee Certificate
to be Executed by Transferees
September 26, 2005
Xxxxx Fargo Bank, National Association
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Services
Anthracite Capital, Inc.
Anthracite Capital Trust I
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Purchase of $____________ stated liquidation amount of
Preferred Securities (the "Preferred Securities") of
Anthracite Capital Trust I
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our purchase of the Preferred Securities
we confirm that:
1. We understand that the Preferred Securities (the
"Preferred Securities") of Anthracite Capital Trust I (the "Trust") of
Anthracite Capital, Inc. (the "Company") executed in connection therewith) and
the Junior Subordinated Notes due 2035 of the Company (the "Subordinated
Notes") (the entire amount of the Trust's outstanding Preferred Securities and
the Subordinated Notes together being referred to herein as the "Offered
Securities"), have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be offered or sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing the Offered Securities
that, if we decide to offer, sell or otherwise transfer any such Offered
Securities, (i) such offer, sale or transfer will be made only (a) to the
Trust, (b) to a person we reasonably believe is a "qualified purchaser" (a
"QP") (as defined in Section 2(a)(51) of the Investment Company Act of 1940,
as amended) and in compliance with the Securities Act. We understand that the
certificates for any Offered Security that we receive will bear a legend
substantially to the effect of the foregoing.
2. We are a "qualified purchaser" within the meaning of
Section 2(a)(51) of the Investment Company Act of 1940, as amended, and are
purchasing for our own account or for the account of such a "qualified
purchaser," and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Offered Securities, and we and any account for which we are
acting are each able to bear the economic risks of our or its investment.
3. We are acquiring the Offered Securities purchased by us
for our own account (or for one or more accounts as to each of which we
exercise sole investment discretion and have authority to make, and do make,
the statements contained in this letter) and not with a view to any
distribution of the Offered Securities, subject, nevertheless, to the
understanding that the disposition of our property will at all times be and
remain within our control.
4. In the event that we purchase any Preferred Securities or
any Subordinated Notes, we will acquire such Preferred Securities having an
aggregate stated liquidation amount of not less than $100,000 or such
Subordinated Notes having an aggregate principal amount not less than
$100,000, for our own account and for each separate account for which we are
acting.
5. We acknowledge that we are not a fiduciary of (i) an
employee benefit, individual retirement account or other plan or arrangement
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") (each a "Plan"); or (ii) an entity whose underlying
assets include "plan assets" by reason of any Plan's investment in the entity,
and are not purchasing any of the Offered Securities on behalf of or with
"plan assets" by reason of any Plan's investment in the entity.
6. We acknowledge that the Trust and the Company and others
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements and agree that if any of the
acknowledgments, representations, warranties and agreements deemed to have
been made by our purchase of any of the Offered Securities are no longer
accurate, we shall promptly notify the Company. If we are acquiring any
Offered Securities as a fiduciary or agent for one or more investor accounts,
we represent that we have sole discretion with respect to each such investor
account and that we have full power to make the foregoing acknowledgments,
representations and agreement on behalf of each such investor account.
(Name of Purchaser)
By:
--------------------------------------------------
Date:
------------------------------------------------
Upon transfer, the Preferred Securities (having a stated
liquidation amount of $_____________) would be registered in the name of the
new beneficial owner as follows.
Name:
Address:
---------------------------------------------
Taxpayer ID Number:
-----------------
Schedule A
Exhibit F
Officer's Financial Certificate
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of
cash flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended _______, 20___].]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter ended [date], 20__.]
The financial statements fairly present in all material respects, in
accordance with U.S. generally accepted accounting principles ("GAAP"), the
financial position of the Company and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the date, and
for the [quarter] [annual] period ended [date], 20__, and such financial
statements have been prepared in accordance with GAAP consistently applied
throughout the period involved (expect as otherwise noted therein).
IN WITNESS WHEREOF, the undersigned has executed this Officer's Financial
Certificate as of this 26th day of September, 2005.
ANTHRACITE CAPITAL, INC.
By:
-------------------------------------
Name:
-------------------------------------
Anthracite Capital, Inc.
[Address]
[Telephone Number]
Schedule A
DETERMINATION OF LIBOR
With respect to the Trust Securities, the London interbank offered
rate ("LIBOR") shall be determined by the Calculation Agent in accordance with
the following provisions (in each case rounded to the nearest .000001%):
(1) On the second LIBOR Business Day (as defined below) prior to a
Distribution Date (except with respect to the first interest payment period,
such date shall be September 23, 2005)] (each such day, a "LIBOR Determination
Date"), LIBOR for any given security shall for the following interest payment
period equal the rate, as obtained by the Calculation Agent from Bloomberg
Financial Markets Commodities News, for three-month Eurodollar deposits that
appears on Dow Xxxxx Telerate Page 3750 (as defined in the International Swaps
and Derivatives Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions), or such other page as may replace such Page 3750, as of 11:00
a.m. (London time) on such LIBOR Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not appear on
Dow Xxxxx Telerate Page 3750 or such other page as may replace such Page 3750,
the Calculation Agent shall determine the arithmetic mean of the offered
quotations of the Reference Banks (as defined below) to leading banks in the
London interbank market for three-month Eurodollar deposits in an amount
determined by the Calculation Agent by reference to requests for quotations as
of approximately 11:00 a.m. (London time) on the LIBOR Determination Date made
by the Calculation Agent to the Reference Banks. If, on any LIBOR
Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal such arithmetic mean of such quotations. If, on
any LIBOR Determination Date, only one or none of the Reference Banks provide
such quotations, LIBOR shall be deemed to be the arithmetic mean of the
offered quotations that leading banks in the City of New York selected by the
Calculation Agent are quoting on the relevant LIBOR Determination Date for
three-month Eurodollar deposits in an amount determined by the Calculation
Agent by reference to the principal London offices of leading banks in the
London interbank market; provided, that if the Calculation Agent is required
but is unable to determine a rate in accordance with at least one of the
procedures provided above, LIBOR shall be LIBOR as determined on the previous
LIBOR Determination Date.
(3) As used herein: "Reference Banks" means four major banks in the
London interbank market selected by the Calculation Agent; and "LIBOR Business
Day" means a day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in London.
