Authorization to Enter into Certain Transactions. 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: 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: the issuance and sale of the Trust Securities; 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, a common securities subscription agreement and a junior subordinated note subscription agreement and to cause the Trust to perform under the Purchase Agreement; 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; 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; the appointment of a successor Paying Agent and Calculation Agent in accordance with this Trust Agreement; execution and delivery of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; execution and delivery of closing certificates, if any, pursuant to the Purchase Agreement; preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; 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); 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 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. 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: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; 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; the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; 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; 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; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number for the Trust; the authentication of the Preferred Securities as provided in this Trust Agreement; and 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). 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): 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 the taking of any other actions necessary or desirable to carry out any of the foregoing activities. Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and 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 this connection, 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. 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.
Appears in 2 contracts
Samples: Trust Agreement (Valley Financial Corp /Va/), Trust Agreement (Greater Community Bancorp)
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 AgreementDeclaration of Trust. In Subject to the limitations set forth in paragraph (b) of this Section and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees, Trustees under this Trust AgreementDeclaration of Trust, and to perform all acts in furtherance thereof, including without limitation, the following: (i) As among the Trustees, each Administrative Trustee shall severally have the power, power and 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, provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further that there shall be no interests in the Trust other than the Trust Securities, and issuance of the Trust Securities shall be limited to a one-time, simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date.; (B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Underwriting Agreement, the Letter of Representations and such agreements, documents, instruments, certificates and other writings agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including, without limitation, a common securities subscription agreement and a junior subordinated note subscription agreement and to cause the Trust to perform under the Purchase Agreement; (C) assisting in the sale registration of the Preferred Securities in one or more transactions exempt from registration under the Securities ActAct of 1933, as amended and in compliance with applicable under state securities or blue sky laws, and the qualification of this Declaration of Trust as a trust indenture under the Trust Indenture Act; (D) assisting in the listing, if any, of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, (the "Exchange Act"), and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (E) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Notes Junior Subordinated Debt Securities to the Holders Securityholders in accordance with this Trust AgreementDeclaration of Trust; (F) the appointment of a successor Paying Agent, Transfer Agent and Calculation Agent Securities Registrar in accordance with this Trust AgreementDeclaration of Trust; execution and delivery (G) registering transfer of the Trust Securities on behalf of the Trust in accordance with this Trust AgreementDeclaration of Trust; execution (H) to acquire the Junior Subordinated Debt Securities and delivery the Guarantee with the proceeds of closing certificatesthe sale of the Preferred Securities and the Common Securities, if anyprovided, pursuant however, that the Administrative Trustees shall cause legal title to the Purchase Agreement; preparation and filing of all applicable tax returns and tax information reports that are required Junior Subordinated Debt Securities to be filed on behalf held of record in the Trust; 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); unless otherwise required by the Delaware Statutory Trust Act, to execute on behalf name 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 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. As among the Trustees, the Property Trustee shall have for the power, authority and authorization to act on behalf benefit of the Trust with respect to the following matters: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; 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; the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; 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; 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; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; (I) to the extent provided in this Trust AgreementDeclaration of Trust, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number B-9 81 (J) unless otherwise determined by the Depositor, the Property Trustee or the Administrative Trustees or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act to execute on behalf of the Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Declaration of Trust; and (K) the taking of any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder). (ii) As among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (A) the establishment of the Payment Account; (B) the receipt of the Junior Subordinated Debt Securities; (C) the collection of interest, principal and any other payments made in respect of the Junior Subordinated Debt Securities in the Payment Account; (D) the distribution of amounts owed to the Securityholders in respect of the Trust Securities; (E) the exercise of all of the rights, powers and privileges of a holder of the Junior Subordinated Debt Securities; (F) the sending of notices of default and other information regarding the Trust Securities and the Junior Subordinated Debt Securities to the Securityholders in accordance with this Declaration of Trust; (G) the authentication distribution of the Preferred Securities as Trust Property in accordance with the terms of this Declaration of Trust; (H) to the extent provided in this Declaration of Trust, the winding up of the affairs of and liquidation of the Trust Agreementand the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and (I) after an Event of Default the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Declaration of Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); and (J) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i). (b) So long as this Declaration of Trust remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Declaration of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iii) intentionally take any action that would cause the Trust to fail or cease to qualify as a "grantor trust" for United States federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) invest any proceeds received by the Trust from holding the Junior Subordinated Debt Securities, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of B-10 82 this Declaration of Trust and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Declaration of Trust or by the terms of the Trust Securities), (x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities, or (xi) other than as provided in this Declaration of Trust or by the terms of the Trust Securities, (A) direct the time, method and place of exercising any trust or power conferred upon the Debenture Trustee with respect to the Junior Subordinated Debt Securities, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all Junior Subordinated Debt Securities shall be due and payable, or (D) consent to any amendment, modification, or termination of the Indenture or the Junior Subordinated Debt Securities where such consent shall be required unless the Trust shall have received an Opinion of Counsel to the effect that such amendment, modification or termination will not cause more than an insubstantial risk that the Trust will be deemed an Investment Company required to be registered under the Investment Company Act, the Trust will not be classified as a grantor trust for United States federal income tax purposes or the Junior Subordinated Debt Securities will not be classified as indebtedness for such purposes. The Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the Securityholders in their capacity as Securityholders. (c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Declaration of Trust Agreement are hereby ratified and confirmed in all respects): (i) the preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form in relation to the Preferred Securities, including any amendments thereto; (ii) the determination of the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and the advice to the Trustees of actions they must take on behalf of the Trust, and the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States; (iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or the NASDAQ National Market for listing upon notice of issuance of any Preferred Securities; (iv) the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto; (v) the negotiation of the terms of, and the execution and delivery of, the Purchase Underwriting 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 lawsSecurities; and (vi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not (i) be taxable deemed to be an "investment company" required to be registered under the Investment Company Act of 1940, as a corporation amended, or (ii) fail to be classified as other than a grantor trust for United States federal income tax purposes, purposes and so that the Notes Junior Subordinated Debt Securities 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 Actpurposes. In this connection, each the Depositor and the B-11 83 Administrative Trustee is Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust AgreementDeclaration of Trust, that such each of the Depositor and the Administrative Trustee Trustees determines in his or her their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders holders of the Outstanding Preferred Trust 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. 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 AgreementSECTION 2.8.
Appears in 1 contract
Samples: Republic New York Capital Iv
Authorization to Enter into Certain Transactions. 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: 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: the issuance and sale of the Trust Securities; 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, a common securities subscription agreement and a junior subordinated note subscription agreement and to cause the Trust to perform under the Purchase Placement Agreement and the Subscription Agreement; 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; 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; the appointment of a successor Paying Agent and Calculation Agent in accordance with this Trust Agreement; execution and delivery of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; execution and delivery of closing certificates, if any, pursuant to the Purchase Placement Agreement; preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; 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); 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 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. 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: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; 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; the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; 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; 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; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number for the Trust; the authentication of the Preferred Securities as provided in this Trust Agreement; and 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). 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): the negotiation of the terms of, and the execution and delivery of, the Purchase Placement Agreement and the Subscription 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 the taking of any other actions necessary or desirable to carry out any of the foregoing activities. Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and 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 this connection, 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. 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.
Appears in 1 contract
Authorization to Enter into Certain Transactions. The Trustees shall conduct the affairs of the Trust in accordance with and subject to the terms of this Trust Agreement. In Subject to the limitations set forth in paragraph (C) of this Section, and in accordance with the following provisions paragraphs (iA) and (iiB), 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 (in the case of the Property Trustee) or implied, otherwise granted to the Trustees, Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including including, without limitation, the following: (A) As among the Trustees, each the Administrative Trustee Trustees, acting singly or jointly, shall severally have the exclusive power, duty and authority and authorization to act on behalf of the Trust with respect to the following matters: (i) to acquire the issuance and Junior Subordinated Notes with the proceeds of the sale of the Trust Securities; provided, however, the Administrative Trustees shall cause legal title to all of the Junior Subordinated Notes to be vested in, and the Junior Subordinated Notes to be held of record in the name of, the Property Trustee for the benefit of the Trust and the Holders of the Trust Securities; (ii) to give the Depositor and the Property Trustee prompt written notice of the occurrence of any Special Event (as defined in the Supplemental Indenture) and to take any ministerial actions in connection therewith; provided that the Administrative Trustees shall consult 10 with the Depositor and the Property Trustee before taking or refraining to take any ministerial action in relation to a Special Event; (iii) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including for the purposes of (S)316(c) of the Trust Indenture Act and with respect to Distributions, voting rights, redemptions, and exchanges, and to issue relevant notices to Holders of the Trust Securities as to such actions and applicable record dates; (iv) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 2.07(B)(v), the Property Trustee has the power to bring such Legal Action; (v) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services; (vi) to cause the Trust to comply with the Trust's obligations under the Trust Indenture Act; (vii) to give the certificate to the Property Trustee required by (S)314(a)(4) of the Trust Indenture Act, which certificate may be executed by any Administrative Trustee; (viii) to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Trust Agreement; (ix) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Trust Securities or to enable the Trust to effect the purposes for which the Trust has been created; (x) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust; (xi) to issue and sell the Trust Securities; (xii) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and such agreements, documents, instruments, certificates and other writings agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including, without limitation, a common securities subscription agreement and a junior subordinated note subscription agreement and consummation hereof; (xiii) to cause the Trust to perform under the Purchase Agreement; assisting assist in the sale registration of the Preferred Securities in one or more transactions exempt from registration under the Securities Act, Act and in compliance with applicable under state securities or blue sky laws; 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; the appointment of a successor Paying Agent and Calculation Agent in accordance with this Trust Agreement; execution and delivery qualification of the Trust Securities on behalf Agreement as a trust indenture under the Trust Indenture Act; (xiv) to assist in the listing of the Trust in accordance with this Trust Agreement; execution and delivery of closing certificatesPreferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor and, if anyrequired, pursuant to the Purchase Agreement; registration of the Preferred Securities under the Exchange Act, and the preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; 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); 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 periodic and other writings that such Administrative Trustee has the power to execute reports and other documents pursuant to this Trust Agreementthe foregoing; and 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. 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: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; 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; the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; 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; 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; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number for the Trust; the authentication of the Preferred Securities as provided in this Trust Agreement; and 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). 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): 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 the taking of any other actions necessary or desirable to carry out any of the foregoing activities. Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and 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 this connection, 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. 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.11
Appears in 1 contract
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 Subject to the limitations set forth in paragraph (b) of this Section, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees, Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following: (i) As among the Trustees, each Administrative Trustee shall severally have the power, power and 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, the Expense Agreement and the Certificate Depository Agreement and such agreements, documents, instruments, certificates and other writings agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including, without limitation, a common securities subscription agreement and a junior subordinated note subscription agreement and to cause the Trust to perform under the Purchase Agreement; (C) assisting in the sale registration of the Preferred Securities in one or more transactions exempt from registration under the Securities ActAct of 1933, as amended, and in compliance with applicable under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act; (D) assisting in the sending listing of notices (other than notices the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor and the registration of default) the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other information regarding the Trust Securities reports and the Notes other documents pursuant to the Holders foregoing; (E) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement; the appointment of a successor Paying Agent and Calculation Agent in accordance with this Trust Agreement; execution and delivery of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; execution and delivery of closing certificates, if any, pursuant to the Purchase Agreement; preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; 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); 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 TrusteesF) any documents and other writings that such Administrative Trustee has the power to execute pursuant to this Trust Agreement; and 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. 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: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; 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; the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; 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; 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; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number for (G) unless otherwise determined by the Trust; Depositor, the authentication Property Trustee or the Administrative Trustees, or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Preferred Securities as provided in Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and (H) the taking of any action incidental to the foregoing as the Property Trustee Trustees 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder). 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): 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 the taking of any other actions necessary or desirable to carry out any of the foregoing activities. Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and 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 this connection, 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. 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.10
Appears in 1 contract
Authorization to Enter into Certain Transactions. The Trustees shall conduct the affairs of the Trust in accordance with and subject to the terms of this Trust Agreement. In Subject to the limitations set forth in paragraph (b) of this Section, and in accordance with the following provisions (i) and (ii), the Administrative Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees, Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following: As among the Trustees, each Administrative Trustee shall severally have the power, power and authority and authorization to act on behalf of the Trust with respect to the following matters: the The issuance and sale of the Trust Securities; to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such agreements, documents, instruments, certificates and other writings agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including, without limitation, a common securities subscription agreement and a junior subordinated note subscription agreement and to cause the Trust to perform under the Purchase Agreement; assisting in the sale registration of the Preferred Securities in one or more transactions exempt from registration under the Securities ActAct of 1933, as amended, and in compliance with applicable under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act; assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Notes Debentures to the Holders Securityholders in accordance with this Trust Agreement; the appointment of a successor Paying Agent Agent, authenticating agent and Calculation Agent Securities Registrar in accordance with this Trust Agreement; execution and delivery registering transfer of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; execution and delivery of closing certificates, if any, pursuant to the Purchase Agreement; preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; 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); 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 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. 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: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; 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; the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; 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; 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; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number for unless as otherwise required by the Trust; Delaware Statutory Trust Act or the authentication Trust Indenture Act, to execute on behalf of the Preferred Securities as provided in Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and the taking of any action incidental to the foregoing as the Property Trustee Trustees 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 Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder). 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): 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 the taking of any other actions necessary or desirable to carry out any of the foregoing activities. Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and 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 this connection, 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. 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.
Appears in 1 contract
Samples: Trust Agreement (AmerUs Capital V)
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: As among the Trustees, each Administrative Trustee shall severally have the power, power and authority and authorization to act on behalf of the Trust with respect to the following matters: the issuance and sale of the Trust Securities; 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 agreements as may be necessary or desirable in connection with the purposes and function of the Trust, including, without limitation, a common securities subscription agreement and a junior subordinated note subscription agreement and to cause the Trust to perform under the Purchase Agreementagreement; 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; 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; the appointment of a successor Paying Agent and Calculation Agent Securities Registrar in accordance with this Trust Agreement; execution and delivery of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; execution and delivery of closing certificates, if any, pursuant to the Purchase AgreementAgreement and application for a taxpayer identification number for the Trust; preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; 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); unless otherwise required by the Delaware Statutory Trust Act, 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 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. As among the Trustees, the Property Trustee shall have the power, duty and authority and authorization to act on behalf of the Trust with respect to the following matters: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; the receipt collection of interest, principal and any other payments made in respect of the Notes and the holding of such amounts in the Payment Account; the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; 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; 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; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number for the Trust; the authentication of the Preferred Securities as provided in this Trust Agreement; and 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). 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): 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 the taking of any other actions necessary or desirable to carry out any of the foregoing activities. Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and 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 this connection, 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. 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.
Appears in 1 contract
Authorization to Enter into Certain Transactions. The Trustees shall conduct the affairs of the Trust in accordance with and subject to the terms of this Trust Agreement. In Subject to the limitations set forth in Section 2.6 and paragraph (b) of this Section, and in accordance with the following provisions (i) and (ii), the Trustees shall have the exclusive power, duty and the authority to enter into all transactions and agreements determined by cause the Trustees Trust to be appropriate engage 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 followingfollowing activities: As among the Trustees, each Administrative Trustee Trustee, acting singly or collectively, shall severally have the power, power and authority and authorization to act on behalf of the Trust with respect to the following matters: to issue and sell the issuance Trust Securities including, without limitation, to prepare the Offering Memorandum and sale any amendment thereto, provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided, further, that there shall be no interests in the Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date and any other date Preferred Securities and Common Securities are sold pursuant to the overallotment option granted to the Initial Purchasers named in the Purchase Agreement, subject to the issuance of Trust Securities pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5; to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Registration Rights Agreement and the Certificate Depositary Agreement and such agreements, documents, instruments, certificates and other writings agreements as may be necessary or desirable in connection with incidental to the purposes and function of the TrustTrust (and, includingwith respect to the Purchase Agreement, without limitation, a common securities subscription agreement and a junior subordinated note subscription agreement and to cause the Trust to perform under such agreement on behalf of the Purchase AgreementTrust); assisting to assist in the sale registration of the Preferred Securities in one or more transactions exempt from registration under the Securities Act, and in compliance with applicable under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act; assisting to assist in the sending listing of notices (other than notices the Preferred Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor and the registration of default) the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other information regarding the Trust Securities reports and the Notes other documents pursuant to the Holders foregoing (only to the extent that such listing or registration is requested by the Depositor); to appoint a Paying Agent and a Securities Registrar in accordance with this Trust Agreement; to the appointment of a successor Paying Agent and Calculation Agent extent provided in accordance with this Trust Agreement; execution , to wind up the affairs of and delivery liquidate the Trust and prepare, execute and file the certificate of cancellation with the Secretary of State of the Trust Securities on behalf State of the Trust in accordance with this Trust Agreement; execution and delivery of closing certificates, if any, pursuant to the Purchase Agreement; preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; 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)Delaware; unless otherwise required by the Delaware Statutory Business Trust Act or the Trust Indenture 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 the Administrative Trustee has Trustees have the power to execute pursuant to this Trust Agreement; and the taking of to take any action incidental to the foregoing as such Administrative Trustee the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust AgreementAgreement including, but not limited to: causing the Trust not to be deemed to be an investment company required to be registered under the 1940 Act; causing the Trust to be classified for United States Federal income tax purposes as a grantor trust; and cooperating with the Depositor to ensure that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes; provided that such action does not adversely affect in any material respect the interests of Securityholders except as otherwise provided in Section 10.2(a). As among the Trustees, the Property Trustee shall have the power, duty and authority and authorization to act on behalf of the Trust with respect to the following matters: the receipt and holding of legal title of the Notes; the establishment of the Payment Account; the receipt of and taking title to the Debentures; the collection of interest, principal and any other payments made in respect of the Notes and the holding of such amounts Debentures in the Payment Account; the distribution through from the Paying Agent Trust Property of amounts distributable owed to the Holders Securityholders in respect of the Trust Securities; the exercise of all of the rights, powers and privileges of a holder of the Notes in accordance with the terms of this Trust AgreementDebentures; the sending of notices of default default, other notices and other information regarding the Trust Securities and the Notes Debentures to the Holders Securityholders in accordance with this Trust Agreement; the distribution of the Trust Property in accordance with the terms of this Trust Agreement; to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the Secretary of State of the State of Delaware; application for a taxpayer identification number for the Trust; the authentication after an Event of the Preferred Securities as provided in this Trust Agreement; and Default, the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders Securityholders (without consideration of the effect of any such action on any particular HolderSecurityholder); subject to this Section 2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i); and to act as Paying Agent and/or Securities Registrar to the extent appointed as such hereunder. 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 transactions except as expressly provided herein or contemplated hereby. In particular, the Trust shall not, and the Trustees shall not and shall cause the Trust not to (i) invest any proceeds received by the Trust from holding the Debentures (rather, the Trustees shall distribute all such proceeds to the Securityholders pursuant to the terms of this Trust Agreement and the Trust Securities), acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust" for United States Federal income tax purposes, (iv) make any loans or incur any indebtedness for borrowed money or issue any other debt, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) possess any power or otherwise act in such a way as to vary the Trust assets or the terms of the Trust Securities in any way whatsoever except as permitted by the terms of this Trust Agreement, or (vii) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Administrative Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the Securityholders in their capacity as Securityholders. 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 actions (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): to file by the negotiation Trust with the Commission and to execute on behalf of the terms ofTrust a registration statement on the appropriate form in relation to the Preferred Securities, including any amendments thereto; to determine the States and foreign jurisdictions in which to take appropriate action to qualify or register for resale all or part of the Preferred Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and prepare for execution and delivery offiling any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States and foreign jurisdictions; to the extent necessary, to prepare for filing by the Trust with the Commission and to execute on behalf of the Trust a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, including any amendments thereto (it being understood that neither the Trust nor the Depositor has any obligation under the Indenture, the Purchase Agreement providing for or the sale of the Preferred Trust Agreement to register any Trust Securities in one or more transactions exempt from registration under the Securities ActExchange Act of 1934, as amended or to list any Trust Securities on any securities exchange); to negotiate, and in compliance with applicable state securities or blue sky lawsto execute and deliver, on behalf of the Trust, the Purchase Agreement; and the taking of any other actions necessary or desirable incidental to carry out any of the foregoing activities. Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be taxable deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation or classified as other than a grantor trust for United States federal Federal income tax purposes, purposes and so that the Notes Debentures will be treated as indebtedness of the Depositor for United States federal 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 Actpurposes. In this connectionrespect, each the Depositor and the Administrative Trustee is Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such each of the Depositor and the Administrative Trustee Trustees determines in his or her their discretion to be necessary or desirable for such purposes, as so 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 Securities except as otherwise provided in Section 2.5 to the extent that such failure results solely from a change in law or regulation or in the interpretation thereof. 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 Agreement10.2(a).
Appears in 1 contract
