EXHIBIT 10.2
EXECUTION COPY
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EXHIBIT 10.2
AMENDED AND RESTATED TRUST AGREEMENT
among
OHI FINANCING, INC.,
as Depositor
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Property Trustee
CHASE BANK USA, NATIONAL ASSOCIATION,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
as Administrative Trustees
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Dated as of November 23, 2005
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ORLEANS HOMEBUILDERS TRUST II
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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.................................. 24
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 25
of Notes....................................................
Section 5.4. The Securities Certificates................................. 25
Section 5.5. Rights of Holders........................................... 26
Section 5.6. Book-Entry Preferred Securities............................. 26
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CONTENTS
CLAUSE PAGE
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............................................ 31
Section 5.13. Form of Certificate of Authentication......................... 34
ARTICLE VI. Meetings; Voting; Acts of Holders............................. 34
Section 6.1. Notice of Meetings............................................ 34
Section 6.2. Meetings of Holders of the Preferred Securities............... 34
Section 6.3. Voting Rights................................................. 35
Section 6.4. Proxies, Etc.................................................. 35
Section 6.5. Holder Action by Written Consent.............................. 35
Section 6.6. Record Date for Voting and Other Purposes..................... 35
Section 6.7. Acts of Holders............................................... 35
Section 6.8. Inspection of Records......................................... 36
Section 6.9. Limitations on Voting Rights.................................. 37
Section 6.10. Acceleration of Maturity; Rescission of Annulment; Waivers
of Past Defaults.............................................. 37
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................... 41
ARTICLE VIII. The Trustees.................................................. 42
Section 8.1. Number of Trustees............................................ 42
Section 8.2. Property Trustee Required..................................... 42
Section 8.3. Delaware Trustee Required..................................... 43
Section 8.4. Appointment of Administrative Trustees........................ 43
Section 8.5. Duties and Responsibilities of the Trustees................... 43
Section 8.6. Notices of Defaults and Extensions............................ 45
Section 8.7. Certain Rights of Property Trustee............................ 45
Section 8.8. Delegation of Power........................................... 48
Section 8.9. May Hold Securities........................................... 48
Section 8.10. Compensation; Reimbursement; Indemnity........................ 48
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CONTENTS
CLAUSE PAGE
Section 8.11. Resignation and Removal; Appointment of Successor.......... 49
Section 8.12. Acceptance of Appointment by Successor..................... 50
Section 8.13. Merger, Conversion, Consolidation or Succession to Business 51
Section 8.14. Not Responsible for Recitals, Issuance of Securities or
Representations............................................ 51
Section 8.15. Property Trustee May File Proofs of Claim.................. 51
Section 8.16. Reports to the Property Trustee............................ 52
ARTICLE IX. Termination, Liquidation and Merger........................ 53
Section 9.1. Dissolution Upon Expiration Date........................... 53
Section 9.2. Early Termination.......................................... 53
Section 9.3. Termination................................................ 53
Section 9.4. Liquidation................................................ 54
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of 55
Trust......................................................
ARTICLE X. Miscellaneous Provisions................................... 57
Section 10.1. Limitation of Rights of Holders............................ 57
Section 10.2. Agreed Tax Treatment of Trust and Trust Securities......... 57
Section 10.3. Amendment.................................................. 57
Section 10.4. Separability............................................... 59
Section 10.5. Governing Law.............................................. 59
Section 10.6. Successors................................................. 59
Section 10.7. Headings................................................... 59
Section 10.8. Reports, Notices and Demands............................... 59
Section 10.9. Agreement Not to Petition.................................. 60
Section 10.10. Counterparts............................................... 60
Exhibit A Certificate of Trust of Orleans Homebuilders Trust II
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Preferred Securities Certificate
Exhibit D Junior Subordinated Indenture
Exhibit E Form of Certificate to be Executed for Transferees
Exhibit F Form of Officer's Financial Certificate
Schedule A Calculation of LIBOR
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THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 23, 2005,
among (i) OHI Financing, Inc., a Delaware corporation (including any successors
or permitted assigns, the "Depositor"), (ii) JPMorgan Chase Bank, National
Association, a national banking association, as property trustee (in such
capacity, the "Property Trustee"), (iii) Chase Bank USA, National Association,
a national banking association, as Delaware trustee (in such capacity, the
"Delaware Trustee"), (iv) Xxxxxxx X. Xxxxx, an individual, Xxxxxx X.
Xxxxxxxxxx, an individual and Xxxxxxxx X. Xxxxx, an individual, each of whose
address is c/o Orleans Homebuilders, Inc., One Greenwood Square, 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxx, 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 Declaration of Trust, dated as of November 18, 2005 (the
"Original Trust Agreement"), and by executing and filing with the Secretary of
State of the State of Delaware the Certificate of Trust, substantially in the
form attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement and (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in and to the Notes;
NOW, THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Holders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I;
(b) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(c) all accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles;
(d) unless the context otherwise requires, any reference to an
"Article", a "Section", a "Schedule" or an "Exhibit" refers to an Article,
a Section, a Schedule or an Exhibit, as the case may be, of or to this
Trust Agreement;
(e) the words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
"Act" has the meaning specified in Section 6.7.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Interest Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Notes for such period.
"Additional Taxes" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Tax Sums" has the meaning specified in Section 10.5 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trust Agreement, solely in
each such Person's capacity as Administrative Trustee of the Trust and not in
such Person's individual capacity, or any successor Administrative Trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Depositary Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Preferred Security, the rules and procedures
of the Depositary for such Book-Entry Preferred Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
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"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises (i) judging such Person a bankrupt or insolvent, (ii) approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law, (iii) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such Person
or of any substantial part of its property or (iv) ordering the winding
up or liquidation of its affairs, and the continuance of any such decree
or order unstayed and in effect for a period of sixty (60) consecutive
days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law, or the consent by it to the filing of any such
petition or to the appointment of a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of such Person or of
any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt or insolvent, or the
taking of corporate action by such Person in furtherance of any such
action.
"Bankruptcy Laws" means all Federal and state bankruptcy, insolvency,
reorganization and other similar laws, including the United States Bankruptcy
Code.
"Book-Entry Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Depositary.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day on
which banking institutions in the City of New York are authorized or required
by law or executive order to remain closed or (c) a day on which the Corporate
Trust Office is closed for business.
"Calculation Agent" has the meaning specified in Section 4.10.
"Closing Date" has the meaning specified in the Purchase Agreement.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Trust
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Agreement such Commission is not existing and performing the duties assigned to
it, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement.
"Corporate Trust Office" means the principal office of the Property Trustee
at which any particular time its corporate trust business shall be
administered, which office at the date of this Trust Agreement is located at
000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Worldwide Securities
Services --- Orleans Homebuilders Trust II
"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.
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"Early Termination Event" has the meaning specified in Section 9.2.
"XXXXX" has the meaning specified in Section 4.11(c).
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) the occurrence of a Note Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period
of thirty (30) days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect of
any covenant or warranty of the Trustees in this Trust Agreement (other
than those specified in clause (b) or (c) above) and continuation of
such default or breach for a period of thirty (30) days after there has
been given, by registered or certified mail, to the Trustees and to the
Depositor by the Holders of at least twenty five percent (25%) in
aggregate Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within
ninety (90) days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Fiscal Year" shall be the fiscal year of the Trust, which shall be the
calendar year, or such other period as is required by the Code.
"Global Preferred Security" means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.
"Guarantee" means the Parent Guarantee Agreement executed and delivered
contemporaneously with this Trust Agreement by the Guarantor and JPMorgan Chase
Bank, National Association, as the same may be amended from time to time.
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"Guarantor" means Orleans Homebuilders, Inc., a Delaware corporation.
"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.
"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).
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"Majority in Liquidation Amount" means Common 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 or Vice President, and by
the Chief Financial Officer, Treasurer or an Assistant Treasurer, of the
Guarantor, and delivered to the Trustees. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Trust Agreement (other than the certificate provided pursuant to Section 8.16
which is not an Officers' Certificate) shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Operative Documents" means the Purchase Agreement, the Indenture, the Trust
Agreement, the Guarantee, the Notes 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.
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"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 but not including the date fixed as 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
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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 (other than the Company or any Affiliate of
the Company) authorized by the Administrative Trustee 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 Section 3.1, Section 4.1 and Section 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association or government, or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit C.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Property
Trustee of the Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Property Trustee appointed as
herein provided.
"Purchase Agreement" means the Purchase Agreement or Purchase Agreements
(whether one or more) executed and delivered contemporaneously with this
Agreement by the Trust, the Depositor and the purchaser(s) named therein, as
the same may be amended from time to time.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act of 1933, as amended.
"QP" means a "qualified purchaser" as defined in Section 2(a)(51) of the
Investment Company Act of 1940, as amended.
"QIB/QP" means a QIB that is also a QP.
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"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 Worldwide Securities Services department of the Property Trustee
having direct responsibility for the administration of this Trust Agreement.
"Securities Act" means the Securities Act of 1933, and any successor statute
thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities Certificates
or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.7.
"Special Note Redemption Price" means, with respect to any Note to be
redeemed on any Redemption Date under the Indenture, an amount equal to one
hundred seven and one half percent (107.5%) of the outstanding principal amount
of such Note, together with accrued interest, including Additional Interest,
thereon through but not including the date fixed as such Redemption Date.
"Special Redemption Price" means, with respect to any Trust Security, an
amount equal to one hundred seven and one half percent (107.5%) of the
Liquidation Amount of such Trust Security on the Redemption Date, plus
accumulated and unpaid Distributions to but not including the date fixed as 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 "Orleans Homebuilders
Trust II," which was created on November 18, 2005 under the Delaware Statutory
Trust Act pursuant to the Original Trust Agreement and the filing of the
Certificate of Trust, and continued pursuant to this Trust Agreement.
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"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented from time to time in accordance
with the applicable provisions hereof, including all Schedules and Exhibits.
"Trustees" means the Administrative Trustees, the Property Trustee and the
Delaware Trustee, each as defined in this Article I.
"Trust Property" means (a) the Notes, (b) any cash on deposit in, or owing
to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed
to be held by the Property Trustee pursuant to the trusts of 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 trust continued hereby shall be known as "Orleans Homebuilders Trust
II", 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 Chase Bank
USA, National Association, 000 Xxxxxxx Xxxxxxxxxx Road, Building 4 (3rd Floor),
Newark, DE 19713, Attention: Worldwide Securities Services, or such other
address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Holders, the Depositor, the Property Trustee and the
Administrative Trustees. The principal executive office of the Trust is One
Greenwood Square, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000, Attention:
Chief Financial Officer, as such address may be changed from time to time by
the Administrative Trustees following written notice to the Holders and the
other Trustees.
SECTION 2.3. Initial Contribution of Trust Property; Fees, Costs and
Expenses.
The Property Trustee acknowledges receipt from the Depositor in connection
with the Original Trust Agreement of the sum of ten dollars ($10), which
constituted the initial Trust Property. The Depositor shall pay all fees, costs
and expenses of the Trust (except with respect to the Trust Securities) as they
arise or shall, upon request of any Trustee, promptly reimburse such Trustee
for any such fees, costs and expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such fees, costs or
expenses.
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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
and (ii) engage in only those activities necessary or incidental thereto. The
Delaware Trustee, the Property Trustee and the Administrative Trustees are
trustees of the Trust, and have all the rights, powers and duties to the extent
set forth herein. The Trustees hereby acknowledge that they are trustees of the
Trust.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust (or the Trustees acting on behalf of the
Trust) shall not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) incur any indebtedness for borrowed money or issue any other debt, (iv)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property, (v) take or consent to any action that would
reasonably be expected to cause the Trust to become taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes, (vi) take or consent to any action that would cause the Notes to be
treated as other than indebtedness of the Depositor for United States federal
income tax purposes or (vii) take or consent to any action that would cause the
Trust to be deemed to be an "investment company" required to be registered
under the Investment Company Act.
SECTION 2.5. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
and subject to the terms of this Trust Agreement. In accordance with the
following provisions (i) and (ii), the Trustees shall have the authority to
enter into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees, under this Trust Agreement, and to perform all acts in
furtherance thereof, including the following:
(i) As among the Trustees, each Administrative Trustee shall severally
have the power and authority to act on behalf of the Trust with respect to
the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, such agreements as may be necessary or
desirable in connection with the purposes and function of the Trust,
including, without limitation, a common securities subscription
agreement and a junior subordinated note purchase agreement and to
cause the Trust to perform its obligations under any such agreements;
(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;
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(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) execution of the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;
(F) the appointment of a Paying Agent and Securities Registrar in
accordance with this Trust Agreement;
(G) execution and delivery of closing certificates, if any,
pursuant to the Purchase Agreement and application for a taxpayer
identification number for the Trust;
(H) preparation and filing of all applicable tax returns and tax
information reports that are required to be filed on behalf of the
Trust;
(I) establishing a record date with respect to all actions to be
taken hereunder that require a record date to be established, except as
provided in Section 6.10(a);
(J) unless otherwise required by the Delaware Statutory Trust Act
to execute on behalf of the Trust (either acting alone or together with
the other Administrative Trustees) any documents that such
Administrative Trustee has the power to execute pursuant to this Trust
Agreement;
(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; and
(L) the appointment of a Paying Agent and Securities Registrar in
accordance with the Trust Agreement.
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the receipt and holding of legal title of the Notes;
(B) the establishment of the Payment Account;
(C) the collection of interest, principal and any other payments
made in respect of the Notes and the holding of such amounts in the
Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Notes in accordance with the terms of this Trust
Agreement;
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(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 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); and
(J) the authentication of the Preferred Securities as provided in
Section 5.13.
(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 U.S. federal income
tax purposes, so that the Notes will be treated as indebtedness of the
Depositor for U.S. 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.
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(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.
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SECTION 3.2. Appointment of Paying Agents.
The Paying Agent shall initially be the Property Trustee. The Paying Agent
shall make Distributions to Holders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent in their sole discretion. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon thirty (30)
days' written notice to the Administrative Trustees and the Property Trustee.
If the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company) to act as Paying Agent. Such successor Paying Agent appointed by
the Administrative Trustees shall execute and deliver to the Trustees an
instrument in which such successor Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent will hold all sums, if any,
held by it for payment to the Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders. The Paying
Agent shall return all unclaimed funds to the Property Trustee and upon removal
of a Paying Agent such Paying Agent shall 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. For the avoidance of doubt, the Company shall not be permitted to
appoint itself or any Affiliate as a Paying Agent hereunder.
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 November
23, 2005, and, except as provided in clause (ii) below, shall be payable
quarterly in arrears on January 30, April 30, July 30 and October 30 of
each year, commencing on January 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
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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
at a fixed rate equal to 8.61% per annum through the Interest Payment Date
in January 2016 and thereafter at a variable rate equal to LIBOR plus 3.6%
per annum of the Liquidation Amount of the Trust Securities (provided that
such rate shall be the Adjusted Interest Rate (as defined in the Indenture)
to the extent provided in Section 3.1(a)(ii) of the Indenture), 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 for any period less than a
full Distribution period 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 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 prior 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)
17
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 Paying Agent to determine its duties and
liabilities with respect to any taxes or other charges that it 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 (5th) 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 available in the Payment Account for the payment of
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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
January 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 any time
before January 30, 2011, 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 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 by or on behalf of 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
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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 available to the Property
Trustee
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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 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.
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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 U.S. federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. The Administrative Trustees
shall prepare at the principal office of the Trust in the United States, as
defined for purposes of Treasury regulations section 301.7701-7, and furnish
(or cause to be prepared and furnished), by January 31 in each taxable year of
the Trust to each Holder all Internal Revenue Service forms and returns
required to be provided by the Trust. The Administrative Trustees shall provide
the Depositor, Taberna Capital Management, LLC and the Property Trustee with a
copy of all such returns and reports promptly after such filing or furnishing.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Tax Sums and upon the written
direction of the Administrative Trustees, the Property Trustee shall promptly
pay, solely out of monies on deposit pursuant to this Trust Agreement, any
Additional Taxes imposed on the Trust by the United States or any other taxing
authority.
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or any Owner
with respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 6.10(b) of this Trust Agreement.
SECTION 4.9. Exchanges.
(a) If at any time the Depositor or any of its Affiliates (in either case,
a "Depositor Affiliate") is the Owner or Holder of any Preferred Securities,
such Depositor Affiliate shall have the right to deliver to the Property
Trustee all or such portion of its Preferred Securities as it elects and,
subject to compliance with Sections 2.2 and 3.5 of the Indenture, receive, in
exchange therefor, a Like Amount of Notes. Such election shall be exercisable
effective on any Distribution Date by such Depositor Affiliate delivering to
the Property Trustee (i) at least ten (10) Business Days prior to the
Distribution Date on which such exchange is to occur, the registration
instructions and the documentation, if any, required pursuant to Sections 2.2
and 3.5 of the Indenture to enable the Indenture Trustee to issue the requested
Like Amount of Notes, (ii) a written notice of such election specifying the
Liquidation Amount of Preferred Securities with respect to which such election
is being made and the Distribution Date on which such exchange shall occur,
which Distribution Date shall be not less than ten (10) Business Days after the
date of receipt by the Property Trustee of such election notice and (iii) shall
be conditioned upon such Depositor Affiliate having delivered or caused to be
delivered to the Property Trustee or its designee the Preferred Securities that
are the subject of such election by 10:00 A.M. New York time, on the
Distribution Date on which such exchange is to occur. After the exchange, such
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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, subject to the immediately following sentence, 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 and amount of interest (with the amount of interest rounded
to the nearest cent, with half a cent being rounded upwards) for the related
Distribution Date, and will communicate such rate and amount to the Depositor,
the Administrative Trustees, the Note Trustee, each Paying Agent and the
Depositary. The Calculation Agent will also specify to the Administrative
Trustee the quotations upon which the foregoing rates and amounts are based
and, in any event, the Calculation Agent shall notify the Administrative
Trustees before 5:00 p.m. (London time) on each LIBOR Determination Date that
either: (i) it has determined or is in the process of determining the foregoing
rates and amounts or (ii) it has not determined and is not in the process of
determining the foregoing rates and amounts, together with its reasons
therefor. The Calculation Agent's determination of the foregoing rates and
amounts for any Distribution Date will (in the absence of manifest error) be
final and binding upon all parties. For the sole purpose of calculating the
interest rate for the Trust Securities, "Business Day" shall be defined as any
day on which dealings in deposits in Dollars are transacted in the London
interbank market.
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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.
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ARTICLE V.
SECURITIES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
referred to in Section 2.3 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are Outstanding, the Depositor
shall be the sole beneficial owner of the Trust.
SECTION 5.2. Authorized Trust Securities.
The Trust shall be authorized to issue one series of Preferred Securities
having an aggregate Liquidation Amount of $75,000,000 and one series of Common
Securities having an aggregate Liquidation Amount of $2,320,000.
SECTION 5.3. Issuance of the Common Securities; Subscription and Purchase of
Notes.
On the Closing Date, an Administrative Trustee, on behalf of the Trust,
shall execute and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, evidencing an aggregate of 2,320
Common Securities having an aggregate Liquidation Amount of Two Million Three
Hundred Twenty Thousand Dollars ($2,320,000), against receipt by the Trust of
the aggregate purchase price of such Common Securities of Two Million Three
Hundred Twenty Thousand Dollars ($2,320,000). Contemporaneously therewith and
with the sale by the Trust to the Holders of an aggregate of 75,000 Preferred
Securities having an aggregate Liquidation Amount of Seventy Five Million
Dollars ($75,000,000), an Administrative Trustee, on behalf of the Trust, shall
purchase from the Depositor Notes, to be registered in the name of the Property
Trustee on behalf of the Trust and having an aggregate principal amount equal
to Seventy Seven Million Three Hundred Twenty Thousand Dollars ($77,320,000),
and, in satisfaction of the purchase price for such Notes, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
Seventy Seven Million Three Hundred Twenty Thousand Dollars ($77,320,000)
(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.
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(b) On the Closing Date, upon the written order of an authorized officer of
the Depositor, the Administrative Trustees shall cause Securities Certificates
to be executed on behalf of the Trust and delivered, without further corporate
action by the Depositor, in authorized denominations.
(c) The Preferred Securities issued to QIBs/QPs shall be, except as
provided in Section 5.6, Book-Entry Preferred Securities issued in the form of
one or more Global Preferred Securities registered in the name of the
Depositary, or its nominee and deposited with the Depositary or a custodian for
the Depositary for credit by the Depositary to the respective accounts of the
Depositary Participants thereof (or such other accounts as they may direct).
The Preferred Securities issued to a Person other than a QIB/QP shall be issued
in the form of Definitive Preferred Securities Certificates.
(d) A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. Such
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Trust Agreement. Upon written order of the Trust
signed by one Administrative Trustee, the Property Trustee shall authenticate
the Preferred Securities for original issue. The Property Trustee may appoint
an authenticating agent that is a U.S. Person acceptable to the Trust to
authenticate the Preferred Securities. A Common Security need not be so
authenticated and shall be valid upon execution by one or more Administrative
Trustees. The form of this certificate of authentication can be found in
Section 5.13.
SECTION 5.5. Rights of Holders.
The Trust Securities shall have no preemptive or similar rights and when
issued and delivered to Holders against payment of the purchase price therefor
will be fully paid and non-assessable by the Trust. Except as provided in
Section 5.11(b), the Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 5.6. Book-Entry Preferred Securities.
(a) A Global Preferred Security may be exchanged, in whole or in part, for
Definitive Preferred Securities Certificates registered in the names of the
Owners only if such exchange complies with Section 5.7 and (i) the Depositary
advises the Administrative Trustees and the Property Trustee in writing that
the Depositary is no longer willing or able properly to discharge its
responsibilities with respect to the Global Preferred Security, and no
qualified successor is appointed by the Administrative Trustees within ninety
(90) days of receipt of such notice, (ii) the Depositary ceases to be a
clearing agency registered under the Exchange Act and the Administrative
Trustees fail to appoint a qualified successor within ninety (90) days of
obtaining knowledge of such event, (iii) the Administrative Trustees at their
option advise the Property Trustee in writing that the Trust elects to
terminate the book-entry system through the Depositary or (iv) a Note Event of
Default has occurred and is continuing. Upon the occurrence of any event
specified in clause (i), (ii), (iii) or (iv) above, the Administrative Trustees
shall notify the Depositary and instruct the Depositary to notify all Owners of
Book-Entry Preferred Securities,
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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
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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
28
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 accompanied by a certificate of the transferee substantially in
the form set forth as Exhibit E hereto.
(e) No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Property Trustee on
behalf of the Trust may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
(f) The Administrative Trustees shall designate an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and initially designate the Corporate
Trust Office as its office and agency for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor, the Property
Trustee and to the Holders of any change in the location of any such office or
agency.
(g) The Preferred Securities may only be transferred to a "Qualified
Purchaser" as such term is defined in section 2(a)(51) of the Investment
Company Act.
(h) Neither the 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 Trustee or the Securities Registrar by a Holder or transferee of a
Security, the 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.
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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 and the Administrative Trustees 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 and the Administrative Trustees such
security or indemnity as may be required by them 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 shall
authenticate, in exchange for or in lieu of any such destroyed, lost or stolen
Securities Certificate, a new Securities Certificate of like class, tenor and
denomination.
(c) In connection with the issuance of any new Securities Certificate under
this Section 5.8, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(d) Any duplicate Securities Certificate issued pursuant to this Section
5.8 shall constitute conclusive evidence of an undivided beneficial interest in
the assets of the Trust corresponding to that evidenced by the mutilated, lost,
stolen or destroyed Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Securities Certificate shall be found at any
time.
(e) If any such mutilated, destroyed, lost or stolen Securities Certificate
has become or is about to become due and payable, the Depositor in its
discretion may provide the Property Trustee or Paying Agent, as applicable,
with the funds to pay such Trust Security and upon receipt of such funds, the
Property Trustee or Paying Agent, as applicable, shall pay such Trust Security
instead of issuing a new Securities Certificate.
(f) The provisions of this Section 5.8 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Securities Certificates.
SECTION 5.9. Persons Deemed Holders.
The Trustees and the Securities Registrar shall each treat the Person in
whose name any Securities Certificate shall be registered in the Securities
Register as the owner of such Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and none of the
Trustees and the Securities Registrar shall be bound by any notice to the
contrary.
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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
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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 ORLEANS HOMEBUILDERS TRUST II OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SUCH PREFERRED SECURITIES
OR ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY
NOTIFIED THAT THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE
AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH
PREFERRED SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY
(I) TO THE TRUST OR (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED PURCHASER" (AS DEFINED IN SECTION 2(a)(51) OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED) AND IN COMPLIANCE WITH THE
SECURITIES ACT, AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY
PREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.
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THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF
PREFERRED SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN
AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF
$1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH
PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH PREFERRED SECURITIES, OR ANY
INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE
NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT PLAN, 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 TITLE I OF ERISA OR
SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE
SUCH PURCHASE."
(b) The above legend shall not be removed from any of the Preferred
Securities Certificates unless there is delivered to the Property Trustee and
the Depositor satisfactory evidence, which may include an opinion of counsel, as
may be reasonably required to ensure that any future transfers thereof may be
made without restriction under the provisions of the Securities Act and other
applicable law. Upon provision of such satisfactory evidence, one or more of the
Administrative Trustees on behalf of the Trust shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, at the written
direction of the Administrative Trustees and the Depositor, Preferred Securities
Certificates that do not bear the legend.
33
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.
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
not in its individual
Dated: 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 Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at
such Holder's registered address, at least fifteen (15) days and not more than
ninety (90) days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
SECTION 6.2. Meetings of Holders of the Preferred Securities.
(a) No annual meeting of Holders is required to be held. The Property
Trustee, 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.
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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
35
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.
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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.
(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 U.S. 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
37
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; and
(B) any accrued Additional Interest on all of the Notes; and
(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 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, 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
38
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 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 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 Section 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.
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ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1.Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association, duly
organized and validly existing under the laws of the United States of
America;
(b) the Property Trustee has full 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 national banking association, duly formed
and validly existing under the laws of the United States;
(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 Restated Organization Certificate or Articles of Association, as
applicable, or By-laws of the Property Trustee or the Delaware Trustee,
(ii) violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the imposition of any lien on
any properties included in the Trust Property pursuant to the provisions of
any indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a party
or by which it is bound, or (iii) violate any applicable law, governmental
rule or regulation of the United States or the State of Delaware, as the
case may be, governing the banking, trust or general powers of the Property
Trustee or the Delaware Trustee or any order, judgment or decree applicable
to the Property Trustee or the Delaware Trustee;
40
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under any
existing law of the United States or the State of Delaware governing the
banking, trust or general powers of the Property Trustee or the Delaware
Trustee, as the case may be; and
(h) to the best of each of the Property Trustee's and the Delaware
Trustee's knowledge, there are no proceedings pending or threatened against
or affecting the Property Trustee or the Delaware Trustee in any court or
before any governmental authority, agency or arbitration board or tribunal
that, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the
Property Trustee or the Delaware Trustee, as the case may be, to enter into
or perform its obligations as one of the Trustees under this Trust
Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders and the Trustees that:
(a) the Depositor is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation;
(b) the Depositor has full corporate power, authority and legal right
to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Depositor and constitutes the legal, valid and binding
agreement of the Depositor enforceable against the Depositor in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general principles of
equity;
(d) the Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the applicable Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Trust Agreement and the Holders will be, as of such date, entitled to the
benefits of this Trust Agreement;
(e) the execution, delivery and performance of this Trust Agreement
have been duly authorized by all necessary corporate or other action on the
part of the Depositor and do not require any approval of stockholders of
the Depositor and such execution, delivery and performance will not (i)
violate the articles or certificate of incorporation or by-laws (or other
organizational documents) of the Depositor or (ii) violate any applicable
law, governmental rule or regulation governing the Depositor
41
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 Section 8.2,
Section 8.3, and Section 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 organized and
doing business under the laws of the United States or of any state thereof,
authorized to exercise corporate trust powers, having 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.
42
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)
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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
44
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 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 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;
45
(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 its obligation to
exercise the rights and powers vested in it by this
46
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; and
(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.
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No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation.
SECTION 8.8. Delegation of Power.
Any Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 its, his or her power
for the purpose of executing any documents contemplated in Section 2.5. The
Trustees shall have power to delegate from time to time to such of their number
or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
SECTION 8.9. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and except as provided in the definition of the term "Outstanding"
in Article I, may otherwise deal with the Trust with the same rights it would
have if it were not a Trustee or such other agent.
SECTION 8.10. Compensation; Reimbursement; Indemnity.
The Depositor agrees:
(a) to pay to the Trustees from time to time such reasonable
compensation for all services rendered by them hereunder as may be agreed
by the Depositor and the Trustees from time to time (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) to reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of their agents and
counsel), except any such expense, disbursement or advance as may be
attributable to their gross negligence, bad faith or willful misconduct;
and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii)
any officer, director, shareholder, employee, representative or agent of
any Trustee or any Affiliate of any Trustee and (iv) any employee or agent
of the Trust (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax (other than income, franchise or
other taxes imposed on amounts paid pursuant to Section 8.10(a) or Section
8.10(b)), 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
48
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
49
Trustee, as the case may be, at a time when an Event of Default shall have
occurred and be continuing, the Holders of the Preferred Securities, by Act of
the Holders of a Majority in Liquidation Amount of the Preferred Securities,
shall promptly appoint a successor Property Trustee or Delaware Trustee, and
such successor Property Trustee or Delaware Trustee and the retiring Property
Trustee or Delaware Trustee shall comply with the applicable requirements of
Section 8.12. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when an Event of
Default shall have occurred and be continuing, the Holder of the Common
Securities by Act of the Holder of Common Securities shall promptly appoint a
successor Administrative Trustee and such successor Administrative Trustee and
the retiring Administrative Trustee shall comply with the applicable
requirements of Section 8.12. If no successor Trustee shall have been so
appointed by the Holder of the Common Securities or Holders of the Preferred
Securities, as the case may be, and accepted appointment in the manner required
by Section 8.12 within thirty (30) days after the giving of a notice of
resignation by a Trustee, the removal of a Trustee, or a Trustee becoming
incapable of acting as such Trustee, any Holder who has been a Holder of
Preferred Securities for at least six (6) months may, on behalf of himself and
all others similarly situated, and any resigning Trustee may, in each case, at
the expense of the Depositor, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(e) The Depositor shall give notice of each resignation and each removal of
the Property Trustee or the Delaware Trustee and each appointment of a
successor Property Trustee or Delaware Trustee to all Holders in the manner
provided in Section 10.8. Each notice shall include the name of the successor
Property Trustee or Delaware Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Holder of Common
Securities, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act of the
remaining Administrative Trustees if there are at least two of them or (ii)
otherwise by the Holder of the Common Securities (with the successor in each
case being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Sections 8.3 and Section 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
50
Property, all proceeds thereof and money held by such retiring Trustee
hereunder with respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Trustee, the Trust (or the retiring
Trustee if requested by the Depositor) shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in the preceding
paragraph.
(c) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article VIII.
SECTION 8.13. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such Person shall
be otherwise qualified and eligible under this Article VIII.
SECTION 8.14. Not Responsible for Recitals, Issuance of Securities or
Representations.
The recitals contained herein and in the Securities Certificates shall be
taken as the statements of the Trust and the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the title to, or value or condition of, the property of
the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Notes or the Trust Securities. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Notes. It is expressly understood and agreed by the parties hereto that insofar
as any document, agreement or certificate is executed on behalf of the Trust by
any Trustee (i) such document, agreement or certificate is executed and
delivered by such Trustee, not in its individual capacity but solely as Trustee
under this Trust Agreement in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings and
agreements made on the part of the Trust is made and intended not as
representations, warranties, covenants, undertakings and agreements by any
Trustee in its individual capacity but is made and intended for the purpose of
binding only the Trust and (iii) under no circumstances shall any Trustee in
its individual capacity be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Trust Agreement or any other document, agreement or
certificate.
SECTION 8.15. Property Trustee May File Proofs of Claim.
(a) In case of any Bankruptcy Event (or event that with the passage of time
would become a Bankruptcy Event) relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee
51
(irrespective of whether any Distributions on the Trust Securities shall then
be due and payable and irrespective of whether the Property Trustee shall have
made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee first any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property Trustee.
(b) Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.16.Reports to the Property Trustee.
(a) The Depositor and the Administrative Trustees shall deliver to the
Property Trustee, not later than forty five (45) days after the end of each of
the first three fiscal quarters of the Depositor and not later than ninety (90)
days after the end of each fiscal year of the Depositor ending after the date
of this Trust Agreement, an Officers' Certificate covering the preceding fiscal
period, stating whether or not to the knowledge of the signers thereof the
Depositor and the Trust are in default in the performance or observance of any
of the terms, provisions and conditions of this Trust Agreement (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Depositor or the Trust shall be in default, specifying all such defaults and
the nature and status thereof of which they have knowledge.
(b) The Depositor shall cause the Guarantor to furnish (i) to the Property
Trustee; (ii) Taberna Capital Management, LLC (at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx or such other address as designated by
Taberna Capital Management, LLC); and (iii) any Owner of the Preferred
Securities reasonably identified to the Depositor and the Trust (which
identification may be made either by such Owner or by Taberna Capital
Management, LLC) a duly completed and executed certificate substantively and
substantially in the form attached hereto as Exhibit F, including the financial
statements referenced in such
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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 Guarantor and not later
than ninety (90) days after the end of each fiscal year of the Guarantor. The
delivery requirements under this Section 8.16(b) may be satisfied by compliance
with Section 7.3(b) of the Indenture or Section 6(h) of the Purchase Agreement.
The Property Trustee shall obtain all reports, certificate and information,
which it is entitled to obtain under each of the Operative Documents.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on November
23, 2040 (the "Expiration Date"), and the Trust Property shall be liquidated in
accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event", upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the Holder
of the Common Securities, unless the Depositor shall have transferred the
Common Securities as provided by Section 5.11, in which case this provision
shall refer instead to any such successor Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to dissolve the Trust and, after
satisfaction of any liabilities of the Trust as required by applicable law,
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
53
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, and 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), Section
9.2(b) or Section 9.2(d) occurs or upon the Expiration Date, the Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
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 Property Trustee 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 Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or Section 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 Section 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
54
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 Property Trustee in such
manner as the Property Trustee 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
55
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 from Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP or other nationally
recognized, independent counsel to the Depositor experienced in such
matters 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 U.S. federal income
tax purposes or cause the Notes to be treated as other than indebtedness of the
Depositor for U.S. federal income tax purposes.
56
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, bankruptcy, termination,
dissolution or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor annul, dissolve or terminate the Trust nor entitle the legal
representatives or heirs of such Person or any Holder for such Person, to claim
an accounting, take any action or bring any proceeding in any court for a
partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
SECTION 10.2. Agreed Tax Treatment of Trust and Trust Securities.
The parties hereto and, by its acceptance or acquisition of a Trust Security
or a beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Trust Security intend and agree to treat the Trust
as a grantor trust for United States federal, state and local tax purposes, and
to treat the Trust Securities (including all payments and proceeds with respect
to such Trust Securities) as undivided beneficial ownership interests in the
Trust Property (and payments and proceeds therefrom, respectively) for United
States federal, state and local tax purposes and to treat the Notes as
indebtedness of the Depositor for United States federal, state and local tax
purposes. The provisions of this Trust Agreement shall be interpreted to
further this intention and agreement of the parties.
SECTION 10.3. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Administrative Trustees and the Holder of all the Common
Securities, without the consent of any Holder of the Preferred Securities, (i)
to cure any ambiguity, correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will neither be taxable as a corporation nor be classified as other than
a grantor trust for United States federal income tax purposes at all times that
any Trust Securities are Outstanding or to ensure that the Notes are treated as
indebtedness of the Depositor for United States federal income tax purposes, or
to ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act or (iii) to add to the covenants,
restrictions or obligations of the Depositor; provided that in the case of
clauses (i), (ii) or (iii), such action shall not adversely affect in any
material respect the interests of any Holder.
(b) Except as provided in Section 10.3(c), any provision of this Trust
Agreement may be amended by the Property Trustee, the Administrative Trustees
and the Holder of all of the Common Securities and with (i) the consent of
Holders of at least a Majority in Liquidation
57
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. In
addition to and subject to the foregoing, the Distribution Dates, Redemption
Date and Stated Maturity (as defined in the Indenture) with respect to the
Preferred Securities or a portion of the Preferred Securities shall be
conformed in connection with any modification of the Interest Payment Date,
Redemption Date or Stated Maturity of the Junior Subordinated Notes made by the
Company and the Trust at the direction of any holder of the Preferred
Securities or a portion of the Preferred Securities as set forth in Section 6
of the Purchase Agreement.
(c) Notwithstanding any other provision of this Trust Agreement, without
the consent of each Holder, this Trust Agreement may not be amended to (i)
change the accrual rate, amount, currency or timing of any Distribution on or
the redemption price of the Trust Securities or otherwise adversely affect the
amount of any Distribution or other payment required to be made in respect of
the Trust Securities as of a specified date, except as set forth in the last
sentence of Section 10.3(b) above, (ii) restrict or impair the right of a
Holder to institute suit for the enforcement of any such payment on or after
such date, (iii) reduce the percentage of aggregate Liquidation Amount of
Outstanding Preferred Securities, the consent of whose Holders is required for
any such amendment, or the consent of whose Holders is required for any waiver
of compliance with any provision of this Trust Agreement or of defaults
hereunder and their consequences provided for in this Trust Agreement; (iv)
impair or adversely affect the rights and interests of the Holders in the Trust
Property, or permit the creation of any Lien on any portion of the Trust
Property; or (v) modify the definition of "Outstanding," this Section 10.3(c),
Section 4.1, Section 4.2, Section 4.3, Section 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.
58
(g) No amendment or modification to this Trust Agreement that adversely
affects in any material respect the rights, duties, liabilities, indemnities or
immunities of the Delaware Trustee hereunder shall be permitted without the
prior written consent of the Delaware Trustee.
SECTION 10.4. Separability.
If any provision in this Trust Agreement or in the Securities Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and there shall be deemed substituted for the provision at
issue a valid, legal and enforceable provision as similar as possible to the
provision at issue.
SECTION 10.5. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit of
any successor to the Depositor, the Trust and any Trustee, including any
successor by operation of law. Except in connection with a transaction
involving the Depositor that is permitted under Article VIII of the Indenture
and pursuant to which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations
hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing delivered in
person, or by reputable, overnight courier, by telecopy or by deposit thereof,
first-class postage prepaid, in the United States mail, addressed, (x) 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 (y) in the case of the
Holder of all the Common Securities or the Depositor, to Orleans Homebuilders,
Inc., One Greenwood Square, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, 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
59
overnight courier, when telecopied with receipt confirmed, or within three (3)
Business Days following delivery by mail, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
(b) Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Property Trustee, the Delaware Trustee, the Administrative Trustees or the
Trust shall be given in writing by deposit thereof, first-class postage
prepaid, in the U.S. mail, personal delivery or facsimile transmission,
addressed to such Person as follows: (i) with respect to the Property Trustee
to JPMorgan Chase Bank, National Association, 000 Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxx 00000, Attention: Worldwide Securities Services--- Orleans Homebuilders
Trust II, facsimile no. (000) 000-0000, (ii) with respect to the Delaware
Trustee, to Chase Bank USA, National Association, c/o JPMorgan Chase Bank,
National Association, 000 Xxxxxxx Xxxxxxxxxx Road, Building 4 (3rd Floor),
Newark, Delaware 19713, Attention: Worldwide Securities Services--- Orleans
Homebuilders Trust II, facsimile no. (000) 000-0000; (iii) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Orleans Homebuilders
Trust II", and (iv) with respect to the Trust, to its principal executive
office specified in Section 2.2, with a copy to the Property Trustee. Such
notice, demand or other communication to or upon the Trust, the Property
Trustee or the Administrative Trustees shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Trust, the Property Trustee or the Administrative Trustees.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the Holders
that, until at least one year and one day after the Trust has been terminated
in accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any Bankruptcy Law or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. If
the Depositor takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the applicable bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Trust may assert.
SECTION 10.10. Counterparts. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
60
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement as of the day and year first above written.
OHI FINANCING, INC.,
as Depositor
By: XXXXXX X. XXXXXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Secretary and
Treasurer
JPMORGAN CHASE BANK, NATIONAL CHASE BANK USA, NATIONAL ASSOCIATION, as
ASSOCIATION, as Property Trustee Delaware Trustee
By: XXXXXX X. XXXXXXXX By: XXXXX X. XXXXXX
--------------------- -------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Assistant Vice President
XXXXXXX X. XXXXX XXXXXX X. XXXXXXXXXX
--------------------- -----------------------------
Administrative Trustee Administrative Trustee
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxxx
XXXXXXXX X. XXXXX
---------------------
Administrative Trustee
Name: Xxxxxxxx X. Xxxxx
Exhibit C
[FORM OF PREFERRED SECURITIES CERTIFICATE]
"[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS PREFERRED SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A
NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR 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 ORLEANS HOMEBUILDERS TRUST II OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND SUCH PREFERRED SECURITIES OR ANY INTEREST
THEREIN MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES
FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED
SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE
TRUST OR (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
PURCHASER" (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) AND IN COMPLIANCE WITH THE SECURITIES ACT, AND (B) THE HOLDER
WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
C-1
THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED
SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE LIQUIDATION
AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH PREFERRED SECURITIES, OR
ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE
BENEFIT PLAN, 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 TITLE I OF ERISA OR
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.
C-2
CERTIFICATE NUMBER AGGREGATE LIQUIDATION AMOUNT
PREFERRED SECURITIES
CUSIP NO.
------------
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
ORLEANS HOMEBUILDERS TRUST II
PREFERRED SECURITIES
(LIQUIDATION AMOUNT $1,000 PER PREFERRED SECURITY)
Orleans Homebuilders Trust II, a statutory trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that ---------, a --------
(the "Holder") is the registered owner of [AMOUNT (#)] Preferred Securities of
the Trust representing an undivided preferred beneficial interest in the assets
of the Trust and designated the Orleans Homebuilders Trust II Preferred
Securities, (liquidation amount $1,000 per Preferred Security) (the "Preferred
Securities"). Subject to the terms of the Trust Agreement (as defined below),
the Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in
Section 5.7 of the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust, dated as of November 23, 2005, as the same may be
amended from time to time (the "Trust Agreement"), among OHI Financing, Inc.,
as Depositor, JPMorgan Chase Bank, National Association, as Property Trustee,
Chase Bank USA, National Association, as Delaware Trustee, the Administrative
Trustees named therein and the Holders, from time to time, of the Trust
Securities. The Trust will furnish a copy of the Trust Agreement to the Holder
without charge upon written request to the Property Trustee at its Corporate
Trust Office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
This Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Schedules and Exhibits thereto.
C-3
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed on behalf of the Trust this certificate this 23 day of November, 2005.
ORLEANS HOMEBUILDERS TRUST II
By: ----------------------
Name:
Administrative Trustee
This is one of the Preferred Securities referred to in the within-mentioned
Trust Agreement.
Dated: November 23, 2005
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely as
Property Trustee
By: --------------------
Authorized signatory
C-4
[FORM OF REVERSE OF SECURITY]
The Trust promises to pay Distributions from November 23, 2005, or from the
most recent Distribution Date to which Distributions have been paid or duly
provided for, quarterly in arrears on January 30, April 30, July 30, and
October 30 of each year, commencing on January 30, 2006, at a fixed rate equal
to 8.61% per annum through the Interest Payment Date in January 2016 and
thereafter at a variable rate equal to LIBOR plus 3.6% per annum of the
Liquidation Amount of the Preferred Securities represented by this Preferred
Securities Certificate (provided that such rate shall be the Adjusted Interest
Rate (as defined in the Indenture) to the extent provided in Section 3.1(a)(ii)
of the Indenture), together with any Additional Interest Amounts, in respect to
such period.
Distributions on the Trust Securities shall be made by the Paying Agent from
the Payment Account and shall be payable on each Distribution Date only to the
extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Distributions.
Distributions on the Securities must be paid on the dates payable to the
extent that the Trust has funds available for the payment of such Distributions
in the Payment Account of the Trust. The Trust's funds available for
Distribution to the Holders of the Preferred Securities will be limited to
payments received from the Depositor.
During an Event of Default, the Depositor shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Depositor's Equity Interests
(as defined in the Indenture), (ii) vote in favor of or permit or otherwise
allow any of its Subsidiaries (as defined in the Indenture) to declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any shares of any such
Subsidiary's preferred stock or other Equity Interests entitling the holders
thereof to a stated rate of return (for the avoidance of doubt, whether such
preferred stock or other Equity Interests are perpetual or otherwise), or (iii)
make any payment of principal of or any interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Depositor that rank pari
passu in all respects with or junior in interest to the Notes, except with
respect to pari passu debt, payments made on a pari passu basis with payments
made pursuant to the Notes.
On each Note Redemption Date, on the stated maturity (or any date of
principal repayment upon early maturity) of the Notes and on each other date on
(or in respect of) which any principal on the Notes is repaid, the Trust will
be required to redeem a Like Amount of Trust Securities at the Redemption
Price. Under the Indenture, the Notes may be redeemed by the Depositor on any
Interest Payment Date, at the Depositor's option, on or after January 30, 2011
in whole or in part from time to time at the Optional Note Redemption Price
equal to the principal amount thereof or the redeemed portion thereof, as
applicable, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, to but excluding the date fixed
for redemption. The Notes may also be redeemed by the Depositor, at its option,
at any time, in whole but not in part, upon the occurrence of an Investment
Company Event or a Tax Event at the Special Note Redemption Price; provided
that such Investment Company Event or a Tax Event is continuing on the
Redemption Date.
C-5
The Trust Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the proceeds from the contemporaneous redemption or
payment at maturity of Notes. Redemptions of the Trust Securities (or portion
thereof) shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Redemption Price.
Payments of Distributions (including any Additional Interest Amounts), the
Redemption Price, Liquidation Amount or any other amounts in respect of the
Preferred Securities shall be made by wire transfer at such place and to such
account at a banking institution in the United States as may be designated in
writing at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written transfer instructions have not
been received by the relevant record date, in which case such payments shall be
made by check mailed to the address of such Person as such address shall appear
in the Security Register. If any Preferred Securities are held by a Depositary,
such Distributions shall be made to the Depositary in immediately available
funds.
The indebtedness evidenced by the Notes is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Debt (as defined in the Indenture), and this Security is
issued subject to the provisions of the Indenture with respect thereto.
C-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Securities Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
Signature:
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(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
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With respect to the Trust Securities, the London interbank offered rate
("LIBOR") shall be determined by the Calculation Agent in accordance with the
following provisions (in each case rounded to the nearest .000001%):
(1) On the second LIBOR Business Day (as defined below) prior to a
Distribution Date after the expiration of the Fixed Rate Period (each such day,
a "LIBOR Determination Date"), LIBOR for any given security shall for the
following interest payment period equal the rate, as obtained by the
Calculation Agent from Bloomberg Financial Markets Commodities News, for three-
month Eurodollar deposits that appears on Dow Xxxxx Telerate Page 3750 (as
defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions), or such other page as may
replace such Page 3750, as of 11:00 a.m. (London time) on such LIBOR
Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not appear on Dow
Xxxxx Telerate Page 3750 or such other page as may replace such Page 3750, the
Calculation Agent shall determine the arithmetic mean of the offered quotations
of the Reference Banks (as defined below) to leading banks in the London
interbank market for three-month Eurodollar deposits in an amount determined by
the Calculation Agent by reference to requests for quotations as of
approximately 11:00 a.m. (London time) on the LIBOR Determination Date made by
the Calculation Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal such arithmetic mean of such quotations. If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such quotations, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that
leading banks in the City of New York selected by the Calculation Agent are
quoting on the relevant LIBOR Determination Date for three-month Eurodollar
deposits in an amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London interbank market;
provided that if the Calculation Agent is required but is unable to determine a
rate in accordance with at least one of the procedures provided above, LIBOR
shall be LIBOR as determined on the previous LIBOR Determination Date.
(3) As used herein: "Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent; and "LIBOR Business Day"
means a day on which commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in London.
