Exhibit 4.2
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AMENDED AND RESTATED TRUST AGREEMENT
among
ANTHRACITE CAPITAL, INC.,
as Depositor
WILMINGTON TRUST COMPANY,
as Property Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
as Administrative Trustees
________________
Dated as of March 16, 2006
________________
ANTHRACITE CAPITAL TRUST III
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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................................................................12
Section 2.5. Authorization to Enter into Certain Transactions.................................12
Section 2.6. Assets of Trust..................................................................15
Section 2.7. Title to Trust Property..........................................................15
ARTICLE III. Payment Account; Paying Agents....................................................................15
Section 3.1. Payment Account..................................................................15
Section 3.2. Appointment of Paying Agents.....................................................16
ARTICLE IV. Distributions; Redemption...........................................................................16
Section 4.1. Distributions....................................................................16
Section 4.2. Redemption.......................................................................18
Section 4.3. Subordination of Common Securities...............................................20
Section 4.4. Payment Procedures...............................................................21
Section 4.5. Withholding Tax..................................................................21
Section 4.6. Tax Returns and Other Reports....................................................22
Section 4.7. Payment of Taxes, Duties, Etc. of the Trust......................................22
Section 4.8. Payments under Indenture or Pursuant to Direct Actions...........................22
Section 4.9. Exchanges........................................................................22
Section 4.10. Calculation Agent................................................................23
Section 4.11. Certain Accounting Matters.......................................................23
ARTICLE V. Securities 25
Section 5.1. Initial Ownership................................................................25
Section 5.2. Authorized Trust Securities......................................................25
Section 5.3. Issuance of the Common Securities; Subscription and Purchase of Notes............25
Section 5.4. The Securities Certificates......................................................25
Section 5.5. Rights of Holders................................................................26
Section 5.6. Book-Entry Preferred Securities..................................................26
Section 5.7. Registration of Transfer and Exchange of Preferred Securities
Certificates.....................................................................28
Section 5.8. Mutilated, Destroyed, Lost or Stolen Securities Certificates.....................30
Section 5.9. Persons Deemed Holders...........................................................30
Section 5.10. Cancellation.....................................................................31
Section 5.11. Ownership of Common Securities by Depositor......................................31
Section 5.12. Restricted Legends...............................................................32
Section 5.13. Form of Certificate of Authentication............................................34
ARTICLE VI. Meetings; Voting; Acts of Holders...................................................................35
Section 6.1. Notice of Meetings...............................................................35
Section 6.2. Meetings of Holders of the Preferred Securities..................................35
Section 6.3. Voting Rights....................................................................35
Section 6.4. Proxies, Etc.....................................................................35
Section 6.5. Holder Action by Written Consent.................................................36
Section 6.6. Record Date for Voting and Other Purposes........................................36
Section 6.7. Acts of Holders..................................................................36
Section 6.8. Inspection of Records............................................................37
Section 6.9. Limitations on Voting Rights.....................................................37
Section 6.10. Acceleration of Maturity; Rescission of Annulment; Waivers of Past
Defaults.........................................................................38
ARTICLE VII. Representations and Warranties.....................................................................40
Section 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.................................................................40
Section 7.2. Representations and Warranties of Depositor......................................42
ARTICLE VIII. The Trustees......................................................................................43
Section 8.1. Number of Trustees...............................................................43
Section 8.2. Property Trustee Required........................................................43
Section 8.3. Delaware Trustee Required........................................................43
Section 8.4. Appointment of Administrative Trustees...........................................44
Section 8.5. Duties and Responsibilities of the Trustees......................................44
Section 8.6. Notices of Defaults and Extensions...............................................46
Section 8.7. Certain Rights of Property Trustee...............................................46
Section 8.8. Delegation of Power..............................................................49
Section 8.9. May Hold Securities..............................................................49
Section 8.10. Compensation; Reimbursement; Indemnity...........................................49
Section 8.11. Resignation and Removal; Appointment of Successor................................50
Section 8.12. Acceptance of Appointment by Successor...........................................51
Section 8.13. Merger, Conversion, Consolidation or Succession to Business......................52
Section 8.14. Not Responsible for Recitals, Issuance of Securities or
Representations..................................................................52
Section 8.15. Property Trustee May File Proofs of Claim........................................52
Section 8.16. Reports to and from the Property Trustee.........................................53
ARTICLE IX. Termination, Liquidation and Merger.................................................................54
Section 9.1. Dissolution Upon Expiration Date.................................................54
Section 9.2. Early Termination................................................................54
Section 9.3. Termination......................................................................54
Section 9.4. Liquidation......................................................................55
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust..................56
ARTICLE X. Information to Purchasers............................................................................58
Section 10.1. Depositor Obligations to Purchasers..............................................58
Section 10.2. Property Trustee's Obligations to Purchasers.....................................58
ARTICLE XI. Miscellaneous Provisions............................................................................58
Section 11.1. Limitation of Rights of Holders..................................................58
Section 11.2. Agreed Tax Treatment of Trust and Trust Securities...............................58
Section 11.3. Amendment........................................................................59
Section 11.4. Separability.....................................................................60
Section 11.5. Governing Law....................................................................60
Section 11.6. Successors.......................................................................61
Section 11.7. Headings.........................................................................61
Section 11.8. Reports, Notices and Demands.....................................................61
Section 11.9. Agreement Not to Petition........................................................62
Section 11.10. Counterparts.....................................................................63
Exhibit A Certificate of Trust of Anthracite Capital Trust III
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Preferred Securities Certificate
Exhibit D Junior Subordinated Indenture
Exhibit E Form of Transfer Certificate to be Executed for QIBs
Exhibit F Form of Transferee Certificate to be Executed by Transferees Other Than QIBs
Exhibit G Form of Officer's Financial Certificate
Exhibit H Form of Officers' Certificate pursuant to Section 8.16(a)
Schedule A Calculation of LIBOR
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 16, 2006,
among (i) Anthracite Capital, Inc., a Maryland corporation (including any
successors or permitted assigns, the "Depositor"), (ii) Wilmington Trust
Company, a Delaware banking corporation, as property trustee (in such capacity,
the "Property Trustee"), (iii) Wilmington Trust Company, a Delaware banking
corporation, 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 March 10, 2006 (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
Bankruptcy 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 10.4 of the
Indenture.
"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 a common security of the Trust, denominated as
such and representing 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
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Capital Markets.
"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.
"Fixed Rate Period" has the meaning set forth in Section 4.1(a)(ii).
"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(a) 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 a preferred security of the Trust,
denominated as such and representing 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.
"Purchaser" means each Person identified as a Purchaser of the
Preferred Securities in the Purchase Agreement.
"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 Capital Markets division at the Corporate Trust Office
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 III," which was created on March 10, 2006 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 (other than Exhibit D).
"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 III", 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 Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Capital Markets, 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 Delaware 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 (in the case
of the Property Trustee, to the actual knowledge of a Responsible Officer)
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 (in the
case of the Property Trustee, to the actual knowledge of a Responsible Officer)
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 (in the case of the Property Trustee, to the actual knowledge of a
Responsible Officer) 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, authority and authorization 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,
documents, instruments, certificates and other writings 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 and delivery 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 and other writings 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, authority and authorization 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 receipt 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;
(I) the authentication of the Preferred Securities as
provided in this Trust Agreement; and
(J) 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 Property Trustee is appointed as the initial Paying Agent and
hereby accepts such appointment. 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 March 16, 2006, and, except as provided in clause (ii)
below, shall be payable quarterly in arrears on March 30th, June 30th,
September 30th and December 30th of each year, commencing on March 30,
2006. 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 7.77% per annum,
through the interest payment date in March 2016 ("Fixed Rate Period"),
and thereafter at a variable rate of LIBOR plus 2.70% 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. During the Fixed Rate
Period, the amount of Distributions payable shall be computed on the
basis of a 360-day year of twelve 30-day months and the amount payable
for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. Upon
expiration of the Fixed Rate Period, the amount of interest payable
for any Distribution period will be computed on the basis of a 360-day
year and the actual number of days elapsed in the relevant
Distribution 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 March 30, 2011, 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 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 Trustees 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 $50,000,000 and one series
of Common Securities having an aggregate Liquidation Amount of $1,547,000.
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 1,547 Common Securities having an aggregate Liquidation Amount of One
Million Five Hundred Forty-Seven Thousand Dollars ($1,547,000), against receipt
by the Trust of the aggregate purchase price of such Common Securities of One
Million Five Hundred Forty-Seven Thousand Dollars ($1,547,000).
Contemporaneously therewith and with the sale by the Trust to the Holders of an
aggregate of 50,000 Preferred Securities having an aggregate Liquidation Amount
of Fifty Million Dollars ($50,000,000), 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 Fifty One Million Five Hundred Forty-Seven Thousand
Dollars ($51,547,000), 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 Fifty One Million Five Hundred Forty-Seven Thousand
Dollars ($51,547,000) (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 the Property
Trustee as 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
and deliver one or more Preferred Security Certificates evidencing 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.
(e) Upon issuance of the Trust Securities as provided in this Trust
Agreement, the Trust Securities so issued shall be deemed to be validly issued,
fully paid and nonassessable, and each Holder thereof shall be entitled to the
benefits provided by this Trust Agreement.
SECTION 5.5. Rights of Holders.
The Trust Securities shall have no, and the issuance of the Trust
Securities is not subject to, 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, and the Property Trustee, upon receipt thereof,
shall authenticate and deliver such Definitive Preferred Securities
Certificates. 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, accompanied by a certificate of the transferee substantially in
the form set forth as Exhibit E or Exhibit F, as the case may be, 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 and, with respect to Preferred
Securities, the Property Trustee shall authenticate, 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 of 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 the Trust Securities evidenced by 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 III 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 SUCH
PREFERRED SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED
ONLY (A) TO THE TRUST OR (B) (I) 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), AND (II)
(Z) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (Y) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, (X) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (W) PURSUANT TO AN EXEMPTION
FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (Y) OR (W), SUBJECT
TO THE RIGHT OF THE TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF
COUNSEL AND OTHER INFORMATION REASONABLY SATISFACTORY TO EACH OF THEM
(PROVIDED THAT IF SUCH OPINION AND INFORMATION STATES THAT THE
PROPOSED OFFER, RESALE OR OTHER TRANSFER WILL BE IN ACCORDANCE WITH
APPLICABLE SECURITIES LAWS, THE COMPANY MAY NOT OBJECT THERETO). IN
ADDITION, THE HOLDER FURTHER AGREES THAT IT WILL NOTIFY ANY PURCHASER
OF ANY PREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN THE PRECEDING SENTENCE AND THAT SUCH PREFERRED
SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY IN
ACCORDANCE WITH SECTION 5.7 OF THE TRUST AGREEMENT AS DEFINED HEREIN.
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 LIQUIDATION AMOUNT OF OR DISTRIBUTIONS 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 authenticate and
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: Wilmington Trust Company, 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 11.8 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 Delaware banking corporation,
duly organized and validly existing under the laws of the State of
Delaware;
(b) the Property 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;
(c) the Delaware Trustee is a Delaware banking corporation,
duly organized and validly existing under the laws of the State of
Delaware and with its principal place of business in 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 Charter 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 (not including the Operative Documents, as to
which no representation is made) 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 and trust 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 and trust 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 (including in its
individual capacity), (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 11.8. 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 of or failure
to perform 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 and from 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 Depositor ending after the date
of this Trust Agreement, an Officers' Certificate (substantially in the form
attached hereto as Exhibit H) covering the preceding fiscal period, stating
whether or not to the knowledge of the signers thereof the Depositor, the
Administrative Trustees or 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, the Administrative Trustees 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) each
Purchaser; (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 any Purchaser); and (iv) any designee of (i), (ii) or (iii) above,
a duly completed and executed certificate in the form attached hereto as
Exhibit G, 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
financial statements are not available by such dates via XXXXX; if the
Depositor is not a company reporting with the Commission, such Exhibit and the
financial statements referenced in said Exhibit shall be delivered.
(c) The Property Trustee shall be furnished all reports, certificates
and information, which it is entitled to receive under each of the Operative
Documents, and deliver to (i) each Purchaser and (ii) a designee of (i) above,
as identified in writing to the Property Trustee, copies of all such reports,
certificates or information promptly upon receipt thereof.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
March 30, 2041 (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.
(b) As soon as practicable thereafter, after satisfaction of
liabilities to creditors of the Trust as required by applicable law,
including Section 3808 of the Delaware Statutory Trust Act, the
Delaware Trustee, when notified in writing of the completion of the
winding up of the Trust in accordance with the Delaware Statutory
Trust Act, shall terminate the Trust by filing, at the expense of the
Depositor, a certificate of cancellation with the Secretary of State
of the State of Delaware.
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.
INFORMATION TO PURCHASERS
SECTION 10.1. Depositor Obligations to Purchasers.
Notwithstanding any other provision herein, the Depositor shall
furnish to (a) each Purchaser, (b) any Owner of the Preferred Securities
reasonably identified to the Depositor or the Trust (which identification may
be made either by such Owner or by any Purchaser) and (c) any designee of (a)
or (b) above, copies of all correspondence, notices, forms, filings, reports
and other documents required to be provided by the Depositor, whether acting
through an Administrative Trustee or otherwise, to the Property Trustee or
Delaware Trustee under this Trust Agreement.
SECTION 10.2. Property Trustee's Obligations to Purchasers.
Notwithstanding any other provision herein, the Property Trustee shall
furnish to (a) each Purchaser and (b) a designee of (a) above as identified in
writing to the Property Trustee, copies of all (i) correspondence, notices,
forms, filings, reports and other documents received by the Property Trustee or
Delaware Trustee from the Depositor, whether acting through an Administrative
Trustee or otherwise, under this Trust Agreement, and (ii) all correspondence,
notices, forms, filings, reports and other documents required to be provided to
the Depositor or a Holder by the Property Trustee or Delaware Trustee under
this Trust Agreement.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.1. 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 11.2. 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 11.3. 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 11.3(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 11.3(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 11.3(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 11.3(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 11.4. 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 11.5. 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, TO THE
FULLEST EXTENT PERMITTED BY LAW, 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 11.6. 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 11.7. Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement
SECTION 11.8. 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
and the Delaware Trustee to Wilmington Trust Company, Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Capital Markets -- Anthracite Capital Trust III, facsimile no. (000) 000-0000;
(ii) 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 III", and (iii) 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 11.9. 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
11.9, 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 11.10. 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.
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------------------------------------------------
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/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and Chief
Operating Officer
WILMINGTON TRUST COMPANY, as WILMINGTON TRUST COMPANY, as
Property Trustee Delaware Trustee
By: /s/ W. Xxxxxx Xxxxxx By: /s/ W. Xxxxxx Xxxxxx
------------------------------- --------------------------------
Name: W. Xxxxxx Xxxxxx Name: W. Xxxxxx Xxxxxx
Title: Assistant Vice President Title: Assistant Vice President
/s/ Xxxxxxx X. Xxxx /s/ Xxxxx X. Xxxxxx
-------------------------------- -----------------------------------
Administrative Trustee Administrative Trustee
Name: Xxxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Administrative Trustee
Name: Xxxxxx X. Xxxxxxxxx
