Execution
Version
AMENDED
AND RESTATED TRUST AGREEMENT
among
REDWOOD
TRUST, INC.,
as
Depositor
THE
BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION,
as
Property Trustee
THE
BANK OF NEW YORK (DELAWARE),
as
Delaware Trustee
and
THE
ADMINISTRATIVE TRUSTEES NAMED HEREIN
as
Administrative Trustees
________________
Dated
as
of December 12, 2006
_______________
REDWOOD
CAPITAL TRUST I
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TABLE
OF CONTENTS
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Clause
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Page
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ARTICLE
I. Defined
Terms
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1
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SECTION
1.1.
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Definitions.
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1
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ARTICLE
II. The
Trust
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11
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SECTION
2.1.
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Name.
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11
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SECTION
2.2.
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Office
of the Delaware Trustee; Principal Place of Business.
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12
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SECTION
2.3.
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Initial
Contribution of Trust Property; Fees, Costs and Expenses.
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12
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SECTION
2.4.
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Purposes
of Trust.
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12
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SECTION
2.5.
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Authorization
to Enter into Certain Transactions.
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12
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SECTION
2.6.
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Assets
of Trust.
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15
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SECTION
2.7.
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Title
to Trust Property.
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15
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ARTICLE
III. Payment
Account; Paying Agents
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15
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SECTION
3.1.
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Payment
Account.
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15
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SECTION
3.2.
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Appointment
of Paying Agents.
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16
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ARTICLE
IV. Distributions;
Redemption
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16
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SECTION
4.1.
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Distributions.
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16
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SECTION
4.2.
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Redemption.
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18
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SECTION
4.3.
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Subordination
of Common Securities.
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20
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SECTION
4.4.
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Payment
Procedures.
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21
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SECTION
4.5.
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Withholding
Tax.
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21
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SECTION
4.6.
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Tax
Returns and Other Reports.
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22
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SECTION
4.7.
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Payment
of Taxes, Duties, Etc. of the Trust.
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22
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SECTION
4.8.
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Payments
under Indenture or Pursuant to Direct Actions.
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22
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SECTION
4.9.
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Exchanges.
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22
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SECTION
4.10.
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Calculation
Agent.
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23
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SECTION
4.11.
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Certain
Accounting Matters.
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24
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ARTICLE
V. Securities
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25
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SECTION
5.1.
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Initial
Ownership.
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25
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SECTION
5.2.
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Authorized
Trust Securities.
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25
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SECTION
5.3.
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Issuance
of the Common Securities; Subscription and Purchase of
Notes.
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SECTION
5.4.
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The
Securities Certificates.
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25
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SECTION
5.5.
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Rights
of Holders.
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26
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SECTION
5.6.
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Book-Entry
Preferred Securities.
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26
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SECTION
5.7.
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Registration
of Transfer and Exchange of Preferred Securities
Certificates.
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28
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SECTION
5.8.
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Mutilated,
Destroyed, Lost or Stolen Securities Certificates.
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30
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SECTION
5.9.
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Persons
Deemed Holders.
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31
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SECTION
5.10.
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Cancellation.
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31
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SECTION
5.11.
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Ownership
of Common Securities by Depositor.
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31
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SECTION
5.12.
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Restricted
Legends.
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32
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SECTION
5.13.
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Form
of Certificate of Authentication.
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34
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ARTICLE
VI. Meetings;
Voting; Acts of Holders
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35
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SECTION
6.1.
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Notice
of Meetings.
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35
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SECTION
6.2.
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Meetings
of Holders of the Preferred Securities.
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35
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SECTION
6.3.
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Voting
Rights.
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35
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SECTION
6.4.
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Proxies,
Etc.
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35
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SECTION
6.5.
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Holder
Action by Written Consent.
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36
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SECTION
6.6.
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Record
Date for Voting and Other Purposes.
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36
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SECTION
6.7.
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Acts
of Holders.
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36
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SECTION
6.8.
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Inspection
of Records.
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37
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SECTION
6.9.
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Limitations
on Voting Rights.
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37
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SECTION
6.10.
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Acceleration
of Maturity; Rescission of Annulment; Waivers of
Past Defaults.
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ARTICLE
VII. Representations
and Warranties
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40
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SECTION
7.1.
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Representations
and Warranties of the Property Trustee and the Delaware
Trustee.
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40
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SECTION
7.2.
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Representations
and Warranties of Depositor.
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42
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ARTICLE
VIII. The
Trustees
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43
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SECTION
8.1.
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Number
of Trustees.
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43
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SECTION
8.2.
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Property
Trustee Required.
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43
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SECTION
8.3.
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Delaware
Trustee Required.
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43
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SECTION
8.4.
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Appointment
of Administrative Trustees.
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44
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SECTION
8.5.
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Duties
and Responsibilities of the Trustees.
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44
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SECTION
8.6.
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Notices
of Defaults and Extensions.
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46
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SECTION
8.7.
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Certain
Rights of Property Trustee.
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46
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SECTION
8.8.
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Delegation
of Power.
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48
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SECTION
8.9.
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May
Hold Securities.
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49
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SECTION
8.10.
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Compensation;
Reimbursement; Indemnity.
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49
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SECTION
8.11.
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Resignation
and Removal; Appointment of Successor.
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50
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SECTION
8.12.
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Acceptance
of Appointment by Successor.
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51
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SECTION
8.13.
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Merger,
Conversion, Consolidation or Succession to Business.
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52
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SECTION
8.14.
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Not
Responsible for Recitals, Issuance of Securities or
Representations.
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52
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SECTION
8.15.
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Property
Trustee May File Proofs of Claim.
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52
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SECTION
8.16.
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Reports
to the Property Trustee.
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53
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ARTICLE
IX. Termination,
Liquidation and Merger
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54
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SECTION
9.1.
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Dissolution
Upon Expiration Date.
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54
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SECTION
9.2.
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Early
Termination.
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54
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SECTION
9.3.
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Termination.
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54
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SECTION
9.4.
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Liquidation.
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55
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SECTION
9.5.
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Mergers,
Consolidations, Amalgamations or Replacements of
Trust.
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ARTICLE
X. Miscellaneous
Provisions
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57
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SECTION
10.1.
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Limitation
of Rights of Holders.
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57
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SECTION
10.2.
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Agreed
Tax Treatment of Trust and Trust Securities.
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58
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SECTION
10.3.
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Amendment.
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58
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SECTION
10.4.
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Separability.
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59
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SECTION
10.5.
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Governing
Law.
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60
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SECTION
10.6.
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Successors.
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60
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SECTION
10.7.
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Headings.
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60
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SECTION
10.8.
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Reports,
Notices and Demands.
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60
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SECTION
10.9.
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Agreement
Not to Petition.
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61
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SECTION
10.10.
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Counterparts.
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61
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Exhibit
A
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Certificate
of Trust of Redwood Capital Trust I
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Exhibit
B
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Form
of Common Securities Certificate
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Exhibit
C
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Form
of Preferred Securities Certificate
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Exhibit
D
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Junior
Subordinated Indenture
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Exhibit
E
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Form
of Certificate to be Executed for Transferees
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Exhibit
F
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Form
of Officer’s Financial Certificate
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Schedule
A
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Calculation
of LIBOR
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This
Amended And Restated Trust Agreement,
dated
as of December 12, 2006, among (i) Redwood Trust, Inc., a Maryland corporation
(including any successors or permitted assigns, the “Depositor”),
(ii)
The Bank of New York Trust Company, National Association, a national banking
association, as property trustee (in such capacity, the“Property
Trustee”),
(iii)
The Bank of New York (Delaware), a national banking association, as Delaware
trustee (in such capacity, the “Delaware
Trustee”),
(iv)
Martin S. Hughes, an individual, Harold F. Zagunis, an individual and Brett
D.
Nicholas, an individual, each of whose address is c/o Redwood Trust, Inc.,
One
Belvedere Place, Suite 300, Mill Valley, California 94941, as administrative
trustees (in such capacities, each an “Administrative
Trustee”
and,
collectively, the “Administrative
Trustees”
and,
together with the Property Trustee and the Delaware Trustee, the “Trustees”)
and (v) the several Holders, as hereinafter defined.
Witnesseth
Whereas,
the Depositor and the Delaware Trustee have heretofore created a Delaware
statutory trust pursuant to the Delaware Statutory Trust Act by entering into
a
Trust Agreement, dated as of December 7, 2006 (the “Original
Trust Agreement”),
and by
executing and filing with the Secretary of State of the State of Delaware the
Certificate of Trust, substantially in the form attached as Exhibit A;
and
Whereas,
the Depositor and the Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in and to
the
Notes;
Now,
therefore, in consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE
I
Defined
Terms
SECTION
1.1. Definitions.
For
all
purposes of this Trust Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the
terms
defined in this Article I have the meanings assigned to them in this Article
I;
(b) the
words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(c) all
accounting terms used but not defined herein have the meanings assigned to
them
in accordance with United States generally accepted accounting
principles;
(d) unless
the context otherwise requires, any reference to an “Article”, a “Section”, a
“Schedule” or an “Exhibit” refers to an Article, a Section, a Schedule or
an Exhibit, as the case may be, of or to this Trust Agreement;
(e) the
words
“hereby”, “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Trust Agreement as a whole and not to any particular Article,
Section or other subdivision;
(f) a
reference to the singular includes the plural and vice versa; and
(g) the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“Act”
has the
meaning specified in Section 6.7.
“Additional
Interest”
has the
meaning specified in Section 1.1 of the Indenture.
“Additional
Interest Amount”
means,
with respect to Trust Securities of a given Liquidation Amount and/or a given
period, the amount of Additional Interest paid by the Depositor on a Like Amount
of Notes for such period.
“Additional
Taxes”
has the
meaning specified in Section 1.1 of the Indenture.
“Additional
Tax Sums”
has the
meaning specified in Section 10.5 of the Indenture.
“Administrative
Trustee”
means
each of the Persons identified as an “Administrative
Trustee” in the preamble to this Trust Agreement, solely in each such Person’s
capacity as Administrative Trustee of the Trust and not in such Person’s
individual capacity, or any successor Administrative Trustee appointed as herein
provided.
“Affiliate”
of any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies
of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Applicable
Depositary Procedures”
means,
with respect to any transfer or transaction involving a Book-Entry Preferred
Security, the rules and procedures of the Depositary for such Book-Entry
Preferred Security, in each case to the extent applicable to such transaction
and as in effect from time to time.
“Bankruptcy
Event”
means,
with respect to any Person:
(a) the
entry
of a decree or order by a court having jurisdiction in the premises (i) judging
such Person a bankrupt or insolvent, (ii) approving as properly filed a petition
seeking reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law, (iii) appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of such Person or of any substantial part of its property or (iv) ordering
the
winding up or liquidation of its affairs, and the continuance of any such decree
or order unstayed and in effect for a period of sixty (60) consecutive days;
or
(b) the
institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or the consent
by
it to the filing of any such petition or to the appointment of a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
such Person or of any substantial part of its property, or the making by it
of
an assignment for the benefit of creditors, or the admission by it in writing
of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt or insolvent, or the taking of corporate action
by
such Person in furtherance of any such action.
“Bankruptcy
Laws”
means
all Federal and state bankruptcy, insolvency, reorganization and other similar
laws, including the United States Bankruptcy Code.
“Book-Entry
Preferred Security”
means
a
Preferred Security, the ownership and transfers of which shall be made through
book entries by a Depositary.
“Business
Day”
means
a
day other than (a) a Saturday or Sunday, (b) a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or (c) a day on which the Corporate Trust
Office is closed for business.
“Calculation
Agent” has
the
meaning specified in Section
4.10.
“Closing
Date”
has
the
meaning specified in the Purchase Agreement.
“Code”
means
the United States Internal Revenue Code of 1986, as amended.
“Commission”
means
the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this
Trust Agreement such Commission is not existing and performing the duties
assigned to it, then the body performing such duties at such time.
“Common
Securities Certificate”
means
a
certificate evidencing ownership of Common Securities, substantially in the
form
attached as Exhibit B.
“Common
Security”
means
an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this
Trust Agreement.
“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 601 Travis, 16th
Floor,
Houston, Texas 77002, Attention: Worldwide Securities Services—Redwood Capital
Trust I. Initially, all notices and correspondence shall be addressed to
Mudassir Mohamed, telephone number (713) 483-6029.
“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 § 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.
“Depositor
Affiliate”
has
the
meaning specified in Section 4.9.
“Distribution
Date”
has
the
meaning specified in Section 4.1(a)(i).
“Distributions”
means
amounts payable in respect of the Trust Securities as provided in Section 4.1.
“DTC”
means
The Depository Trust Company, a New York corporation, or any successor
thereto.
“Early
Termination Event”
has
the
meaning specified in Section 9.2.
“EDGAR”
has
the
meaning specified in Section
4.11(c).
“Event
of Default”
means
any one of the following events (whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) the
occurrence of a Note Event of Default; or
(b) default
by the Trust in the payment of any Distribution when it becomes due and payable,
and continuation of such default for a period of thirty (30) days;
or
(c) default
by the Trust in the payment of any Redemption Price of any Trust Security when
it becomes due and payable; or
(d) default
in the performance or breach, in any material respect, of any covenant or
warranty of the Trustees in this Trust Agreement (other than those specified
in
clause (b) or (c) above) and continuation of such default or breach for a period
of thirty (30) days after there has been given, by registered or certified
mail,
to the Trustees and to the Depositor by the Holders of at least twenty-five
percent (25%) in aggregate Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and requiring
it
to be remedied and stating that such notice is a “Notice
of
Default” hereunder; or
(e) the
occurrence of a Bankruptcy Event with respect to the Property Trustee if a
successor Property Trustee has not been appointed within ninety (90) days
thereof.
“Exchange
Act”
means
the Securities Exchange Act of 1934, and any successor statute thereto, in
each
case as amended from time to time.
“Expiration
Date”
has
the
meaning specified in Section 9.1.
“Fiscal
Year”
shall
be the fiscal year of the Trust, which shall be the calendar year, or such
other
period as is required by the Code.
“Global
Preferred Security”
means
a
Preferred Securities Certificate evidencing ownership of Book-Entry Preferred
Securities.
“Holder”
means
a
Person in whose name a Trust Security or Trust Securities are registered in
the
Securities Register; any such Person shall be deemed to be a beneficial owner
within the meaning of the Delaware Statutory Trust Act.
“Indemnified
Person”
has
the
meaning specified in Section
8.10(c).
“Indenture”
means
the Junior Subordinated Indenture executed and delivered by the Depositor and
the Note Trustee contemporaneously with the execution and delivery of this
Trust
Agreement, for the benefit of the holders of the Notes, a copy of which is
attached hereto as Exhibit
D,
as
amended or supplemented from time to time.
“Interest
Payment Date(s)”
has
the
meaning specified in Section 1.1 of the Indenture.
“Investment
Company Act”
means
the Investment Company Act of 1940, or any successor statute thereto, in each
case as amended from time to time.
“Investment
Company Event”
has
the
meaning specified in Section 1.1 of the Indenture.
“LIBOR”
has
the
meaning specified in Schedule
A.
“LIBOR
Business Day”
has
the
meaning specified in Schedule
A.
“LIBOR
Determination Date”
has
the
meaning specified in Schedule
A.
“Lien”
means
any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse
ownership interest, hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement of any kind
or
nature whatsoever.
“Like
Amount”
means
(a) with respect to a redemption of any Trust Securities, Trust Securities
having a Liquidation Amount equal to the principal amount of Notes to be
contemporaneously redeemed or paid at maturity in accordance with the Indenture,
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, (b) with respect to a distribution of Notes to Holders of Trust
Securities in connection with a dissolution of the Trust, Notes having a
principal amount equal to the Liquidation Amount of the Trust Securities of
the
Holder to whom such Notes are distributed and (c) with respect to any
distribution of Additional Interest Amounts to Holders of Trust Securities,
Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
“Liquidation
Amount”
means
the stated amount of $1,000 per Trust Security.
“Liquidation
Date”
means
the date on which assets are to be distributed to Holders in accordance with
Section
9.4(a)
hereunder following dissolution of the Trust.
“Liquidation
Distribution”
has
the
meaning specified in Section 9.4(d).
“Majority
in Liquidation Amount”
means
Common or Preferred Securities, as the case may be, representing more than
fifty
percent (50%) of the aggregate Liquidation Amount of all (or a specified group
of) then Outstanding Common or Preferred Securities, as the case may
be.
“Note
Event of Default”
means
any “Event
of
Default” specified in Section
5.1
of the
Indenture.
“Note
Redemption Date”
means,
with respect to any Notes to be redeemed under the Indenture, the date fixed
for
redemption of such Notes under the Indenture.
“Note
Trustee”
means
the Person identified as the “Trustee”
in the Indenture, solely in its capacity as Trustee pursuant to the Indenture
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Trustee appointed as provided in the
Indenture.
“Notes”
means
the Depositor’s Junior Subordinated Notes issued pursuant to the
Indenture.
“Officers’
Certificate”
means
a
certificate signed by the Chief Executive Officer, the President or an Executive
Vice President, and by the Chief Financial Officer, Treasurer or an Assistant
Treasurer, of the Depositor, and delivered to the Trustees. Any Officers’
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement (other than the certificate provided
pursuant to Section
8.16
which is
not an Officers’ Certificate) shall include:
(a) a
statement by each officer signing the Officers’ Certificate that such officer
has read the covenant or condition and the definitions relating
thereto;
(b) a
brief
statement of the nature and scope of the examination or investigation undertaken
by such officer in rendering the Officers’ Certificate;
(c) a
statement that such officer has made such examination or investigation as,
in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a
statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.
“Operative
Documents”
means
the Purchase Agreement, the Indenture, the Trust Agreement, the Notes and the
Trust Securities.
“Opinion
of Counsel”
means
a
written opinion of counsel, who may be counsel for, or an employee of, the
Depositor or any Affiliate of the Depositor.
“Optional
Note Redemption Price”
means,
with respect to any Note to be redeemed on any Redemption Date under the
Indenture, an amount equal to one hundred percent (100%) of the outstanding
principal amount of such Note, together with accrued interest, including any
Additional Interest (to the extent legally enforceable), thereon through but
not
including the date fixed as such Redemption Date.
“Optional
Redemption Price”
means,
with respect to any Trust Security, an amount equal to one hundred percent
(100%) of the Liquidation Amount of such Trust Security on the Redemption Date,
plus accumulated and unpaid Distributions to the Redemption Date, plus the
related amount of the premium, if any, and/or accrued interest, including
Additional Interest, if any, thereon paid by the Depositor upon the concurrent
redemption or payment at maturity of a Like Amount of Notes.
“Original
Trust Agreement”
has
the
meaning specified in the recitals to this Trust Agreement.
“Outstanding”,
when
used with respect to any Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under
this Trust Agreement, except:
(a) Trust
Securities theretofore canceled by the Property Trustee or delivered to the
Property Trustee for cancellation;
(b) Trust
Securities for which payment or redemption money in the necessary amount has
been theretofore deposited with the Property Trustee or any Paying Agent in
trust for the Holders of such Trust Securities; provided,
that if
such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Trust
Securities that have been paid or in exchange for or in lieu of which other
Trust Securities have been executed and delivered pursuant to the provisions
of
this Trust Agreement, unless proof satisfactory to the Property Trustee is
presented that any such Trust Securities are held by Holders in whose hands
such
Trust Securities are valid, legal and binding obligations of the
Trust;
provided,
that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred Securities owned
by
the Depositor, any Trustee or any Affiliate of the Depositor or of any Trustee
shall be disregarded and deemed not to be Outstanding, except that (i) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of
the Outstanding Preferred Securities are owned by the Depositor, one or more
of
the Trustees and/or any such Affiliate. Preferred Securities so owned that
have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee’s
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor, any Trustee or any Affiliate of the Depositor or of any
Trustee.
“Owner”
means
each Person who is the beneficial owner of Book-Entry Preferred Securities
as
reflected in the records of the Depositary or, if a Depositary Participant
is
not the beneficial owner, then the beneficial owner as reflected in the records
of the Depositary Participant.
“Paying
Agent”
means
any Person (other than the Depositor or any Affiliate of the Depositor)
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
Sections
3.1,
4.1
and
4.2.
“Person”
means
a
legal person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, company, limited liability company,
trust, unincorporated association or government, or any agency or political
subdivision thereof, or any other entity of whatever nature.
“Preferred
Security”
means
an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this
Trust Agreement.
“Preferred
Securities Certificate”
means
a
certificate evidencing ownership of Preferred Securities, substantially in
the
form attached as Exhibit
C.
“Property
Trustee”
means
the Person identified as the “Property
Trustee” in the preamble to this Trust Agreement, solely in its capacity as
Property Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor Property Trustee
appointed as herein provided.
“Purchase
Agreement”
means
the Purchase Agreement or Purchase Agreements (whether one or more) executed
and
delivered contemporaneously with this Agreement by the Trust, the Depositor
and
the purchaser(s) named therein, as the same may be amended from time to
time.
“QIB”
means
a
“qualified institutional buyer” as defined in Rule 144A under the Securities Act
of 1933, as amended.
“QP”
means
a
“qualified purchaser” as defined in Section 2(a)(51) of the Investment Company
Act of 1940, as amended.
“QIB/QP”
means
a
QIB that is also a QP.
“Redemption
Date”
means,
with respect to any Trust Security to be redeemed, the date fixed for such
redemption by or pursuant to this Trust Agreement; provided,
that
each Note Redemption Date and the stated maturity (or any date of principal
repayment upon early maturity) of the Notes shall be a Redemption Date for
a
Like Amount of Trust Securities.
“Redemption
Price”
means
the Special Redemption Price or Optional Redemption Price, as applicable. If
the
Depositor has redeemed the Notes at the Special Note Redemption Price, the
Trust
shall redeem the Trust Securities at the Special Redemption Price. If the
Depositor has redeemed the Notes at the Optional Note Redemption Price, the
Trust shall redeem the Trust Securities at the Optional Redemption
Price.
“Reference
Banks”
has the
meaning specified in Schedule
A.
“Responsible
Officer”
means,
with respect to the Property Trustee, the officer in the 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:
|
TIME
PERIOD
|
|
PERCENTAGE
|
|
|
December
12, 2006 - January 29, 2008
|
|
|
107.5
|
%
|
|
January
30, 2008 - January 29, 2009
|
|
|
105
|
%
|
|
January
30, 2009 - January 29, 2010
|
|
|
103.75
|
%
|
|
January
30, 2010 - January 29, 2011
|
|
|
102.5
|
%
|
|
January
30, 2011 - January 29, 2012
|
|
|
101.25
|
%
|
|
January
30, 2012 and thereafter
|
|
|
100
|
%
|
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:
|
TIME
PERIOD
|
|
PERCENTAGE
|
|
|
December
12, 2006 - January 29, 2008
|
|
|
107.5
|
%
|
|
January
30, 2008 - January 29, 2009
|
|
|
105
|
%
|
|
January
30, 2009 - January 29, 2010
|
|
|
103.75
|
%
|
|
January
30, 2010 - January 29, 2011
|
|
|
102.5
|
%
|
|
January
30, 2011 - January 29, 2012
|
|
|
101.25
|
%
|
|
January
30, 2012 and thereafter
|
|
|
100
|
%
|
of
the
Liquidation Amount of such Trust Security on the Redemption Date, plus
accumulated and unpaid Distributions to the Redemption Date, plus the related
amount of the premium, if any, and/or accrued interest, including Additional
Interest, if any, thereon paid by the Depositor upon the concurrent redemption
or payment at maturity of a Like Amount of Notes.
“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 “Redwood Capital Trust I”, which was
created on December 7, 2006 under the Delaware Statutory Trust Act pursuant
to
the Original Trust Agreement and the filing of the Certificate of Trust, and
continued pursuant to this Trust Agreement.
“Trust
Agreement”
means
this Amended and Restated Trust Agreement, as the same may be modified, amended
or supplemented from time to time in accordance with the applicable provisions
hereof, including all Schedules and Exhibits.
“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 “Redwood Capital Trust I”, as such name may
be modified from time to time by the Administrative Trustees following written
notice to the Holders of Trust Securities and the other Trustees, in which
name
the Trustees may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and sue 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 The Bank of New
York
(Delaware), 100 White Clay Center, Route 273, Newark, DE 19711, 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 c/o
Redwood Trust, Inc., One Belvedere Place, Suite 300, Mill Valley, California
94941, as such address may be changed from time to time by the Administrative
Trustees following written notice to the Holders and the other
Trustees.
SECTION
2.3. Initial
Contribution of Trust Property; Fees, Costs and Expenses.
The
Property Trustee acknowledges receipt from the Depositor in connection with
the
Original Trust Agreement of the sum of ten dollars ($10), which constituted
the
initial Trust Property. The Depositor shall pay all fees, costs and expenses
of
the Trust (except with respect to the Trust Securities) as they arise or shall,
upon request of any Trustee, promptly reimburse such Trustee for any such fees,
costs and expenses paid by such Trustee. The Depositor shall make no claim
upon
the Trust Property for the payment of such fees, costs or expenses.
SECTION
2.4. Purposes
of Trust.
(a) The
exclusive purposes and functions of the Trust are to (i) issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes 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;
(C) assisting
in the sale of the Preferred Securities in one or more transactions exempt
from
registration under the Securities Act, and in compliance with applicable state
securities or blue sky laws;
(D) assisting
in the sending of notices (other than notices of default) and other information
regarding the Trust Securities and the Notes to the Holders in accordance with
this Trust Agreement;
(E) 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; and
(K) the
taking of any action incidental to the foregoing as such Administrative Trustee
may from time to time determine is necessary or advisable to give effect to
the
terms of this Trust Agreement.
(ii) As
among
the Trustees, the Property Trustee shall have the power, duty and authority
to
act on behalf of the Trust with respect to the following matters:
(A) the
receipt and holding of legal title of the Notes;
(B) the
establishment of the Payment Account;
(C) the
collection of interest, principal and any other payments made in respect of
the
Notes and the holding of such amounts in the Payment Account;
(D) the
distribution through the Paying Agent of amounts distributable to the Holders
in
respect of the Trust Securities;
(E) the
exercise of all of the rights, powers and privileges of a holder of the Notes
in
accordance with the terms of this Trust Agreement;
(F) the
sending of notices of default and other information regarding the Trust
Securities and the Notes to the Holders in accordance with this Trust
Agreement;
(G) the
distribution of the Trust Property in accordance with the terms of this Trust
Agreement;
(H) to
the
extent provided in this Trust Agreement, the winding up of the affairs of and
liquidation of the Trust, provided that the Administrative Trustees shall have
the power, duty and authority to act on behalf of the Trust with respect to
the
preparation, execution and filing of the certificate of cancellation of the
Trust with the Secretary of State of the State of Delaware; and
(I) the
taking of any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).
(b) In
connection with the issue and sale of the Preferred Securities, the Depositor
shall have the right and responsibility to assist the Trust with respect to,
or
effect on behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) the
negotiation of the terms of, and the execution and delivery of, the Purchase
Agreement providing for the sale of the Preferred Securities in one or more
transactions exempt from registration under the Securities Act, and in
compliance with applicable state securities or blue sky laws; and
(ii) the
taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
(c) Notwithstanding
anything herein to the contrary, the Trustees are authorized and directed to
conduct the affairs of the Trust and authorized to operate the Trust so that
the
Trust will not be taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes, so that the Notes will
be
treated as indebtedness of the Depositor for United States federal income tax
purposes and so that the Trust will not be deemed to be an “investment company”
required to be registered under the Investment Company Act. In respect thereof,
each Administrative Trustee is authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Trust Agreement, that
such
Administrative Trustee determines in his or her discretion to be necessary
or
desirable for such purposes, as long as such action does not adversely affect
in
any material respect the interests of the Holders of the Outstanding Preferred
Securities. In no event shall the Administrative Trustees be liable to the
Trust
or the Holders for any failure to comply with this Section
2.5
to the
extent that such failure results solely from a change in law or regulation
or in
the interpretation thereof.
(d) Any
action taken by a Trustee in accordance with its powers shall constitute the
act
of and serve to bind the Trust. In dealing with any Trustee acting on behalf
of
the Trust, no Person shall be required to inquire into the authority of such
Trustee to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of any Trustee as set forth in this
Trust Agreement.
SECTION
2.6. Assets
of Trust.
The
assets of the Trust shall consist of the Trust Property.
SECTION
2.7. Title
to Trust Property.
(a) Legal
title to all Trust Property shall be vested at all times in the Property Trustee
and shall be held and administered by the Property Trustee in trust for the
benefit of the Trust and the Holders in accordance with this Trust
Agreement.
(b) The
Holders shall not have any right or title to the Trust Property other than
the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement.
ARTICLE
III
Payment
Account; Paying Agents
SECTION
3.1. Payment
Account.
(a) On
or
prior to the Closing Date, the Property Trustee shall establish the Payment
Account. The Property Trustee and the Paying Agent shall have exclusive control
and sole right of withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account in accordance
with this Trust Agreement. All monies and other property deposited or held
from
time to time in the Payment Account shall be held by the Property Trustee in
the
Payment Account for the exclusive benefit of the Holders and for Distribution
as
herein provided.
(b) The
Property Trustee shall deposit in the Payment Account, promptly upon receipt,
all payments of principal of or interest on, and any other payments with respect
to, the Notes. Amounts held in the Payment Account shall not be invested by
the
Property Trustee pending distribution thereof.
SECTION
3.2. Appointment
of Paying Agents.
The
Paying Agent shall initially be the Property Trustee. The Paying Agent shall
make Distributions to Holders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds
from
the Payment Account solely for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove the
Paying Agent in their sole discretion. Any Person acting as Paying Agent shall
be permitted to resign as Paying Agent upon thirty (30) days’ written notice to
the Administrative Trustees and the Property Trustee. If the Property Trustee
shall no longer be the Paying Agent or a successor Paying Agent shall resign
or
its authority to act be revoked, the Administrative Trustees shall appoint
a
successor (which shall be a bank or trust company) to act as Paying Agent.
Such
successor Paying Agent appointed by the Administrative Trustees shall execute
and deliver to the Trustees an instrument in which such successor Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
will hold all sums, if any, held by it for payment to the Holders in trust
for
the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent shall 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 Depositor 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 December 12, 2006, 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, 2007. If any date on which a Distribution is otherwise payable
on
the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding Business Day (and no interest
shall accrue in respect of the amounts whose payment is so delayed for the
period from and after each such date until the next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in
each
case, with the same force and effect as if made on such date (each date on
which
Distributions are payable in accordance with this Section 4.1(a)(i),
a
“Distribution
Date”);
(ii) Distributions
shall accumulate in respect of the Trust Securities at a variable rate equal
to
LIBOR plus 2.25%
per
annum of the Liquidation Amount of the Trust Securities, such rate being the
rate of interest payable on the Notes. LIBOR shall be determined by the
Calculation Agent in accordance with Schedule
A.
The
amount of Distributions payable for any Distribution period shall be computed
on
the basis of a 360-day year and the actual number of days elapsed in the
relevant Distribution period. The amount of Distributions payable for any period
shall also 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 Holder to whom principal is paid
pursuant to Section
4.2(d).
Distributions payable on any Trust Securities that are not punctually paid
on
any Distribution Date as a result of the Depositor having failed to make an
interest payment under the Notes will cease to be payable to the Person in
whose
name such Trust Securities are registered on the relevant record date, and
such
defaulted Distributions and any Additional Interest Amounts will instead be
payable to the Person in whose name such Trust Securities are registered on
the
special record date, or other specified date for determining Holders entitled
to
such defaulted Distribution and Additional Interest Amount, established in
the
same manner, and on the same date, as such is established with respect to the
Notes under the Indenture.
(c) As
a
condition to the payment of any principal of or interest on the Trust Securities
without the imposition of withholding tax, the Administrative Trustees shall
require the previous delivery of properly completed and signed applicable United
States federal income tax certifications (generally, an Internal Revenue Service
Form W-9 (or applicable successor form) in the case of a person that is a
“United States person” within the meaning of Section 7701(a)(30) of the Code or
an Internal Revenue Service Form W-8 (or applicable successor form) in the
case
of a person that is not a “United States person” within the meaning of Section
7701(a)(30) of the Code) and any other certification acceptable to it to enable
the 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 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, 2012, in
whole
or in part, from time to time at the Optional Note Redemption Price. The Notes
may also be redeemed by the Depositor, at its option pursuant to the terms
of
the Indenture, in whole but not in part, upon the occurrence and during the
continuation of an Investment Company Event or a Tax Event, at the Special
Note
Redemption Price.
(d) If
the
Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then by 10:00 a.m., New York City time, on the Redemption Date,
the
Depositor shall deposit sufficient funds with the Property Trustee to pay the
Redemption Price. If such deposit has been made by such time, then by 12:00
noon, New York City time, on the Redemption Date, the Property Trustee will,
with respect to Book-Entry Preferred Securities, irrevocably deposit with the
Depositary for such Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will
give
such Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to Preferred
Securities that are not Book-Entry Preferred Securities, the Property Trustee
will irrevocably deposit with the Paying Agent, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will
give
the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities (or portion
thereof) called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such deposit,
all rights of Holders holding Trust Securities (or portion thereof) so called
for redemption will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust Securities
on or prior to the Redemption Date, but without interest, and, in the case
of a
partial redemption, the right of such Holders to receive a new Trust Security
or
Securities of authorized denominations, in aggregate Liquidation Amount equal
to
the unredeemed portion of such Trust Security or Securities, and such Securities
(or portion thereof) called for redemption will cease to be Outstanding. In
the
event that any date on which any Redemption Price is payable is not a Business
Day, then payment of the Redemption Price payable on such date will be made
on
the next succeeding Business Day (and no interest shall accrue in respect of
the
amounts whose payment is so delayed for the period from and after each such
date
until the next succeeding Business Day), except that, if such Business Day
falls
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price
in
respect of any Trust Securities (or portion thereof) called for redemption
is
improperly withheld or refused and not paid either by the Trustee or the Paying
Agent, Distributions on such Trust Securities (or portion thereof) will continue
to accumulate, as set forth in Section
4.1,
from
the Redemption Date originally established by the Trust for such Trust
Securities (or portion thereof) to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Subject
to Section 4.3(a),
if
less than all the Outstanding Trust Securities are to be redeemed on a
Redemption Date, then the aggregate Liquidation Amount of Trust Securities
to be
redeemed shall be allocated pro
rata
to the
Common Securities and the Preferred Securities based upon the relative aggregate
Liquidation Amounts of the Common Securities and the Preferred Securities.
Upon
such a partial redemption, the Preferred Securities to be redeemed from
each Holder of Preferred Securities shall be selected on a pro rata basis based
upon the respective Liquidation Amounts of the Preferred Securities then
held by each Holder of the Preferred Securities not more than sixty (60) days
prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption; provided,
that
with
respect to Holders that would be required to hold less than one hundred (100)
but more than zero (0) Trust Securities as a result of such redemption, the
Trust shall redeem Trust Securities of each such Holder so that after such
redemption such Holder shall hold either one hundred (100) Trust Securities
or
such Holder no longer holds any Trust Securities, and shall use such method
(including, without limitation, by lot) as the Trust shall deem fair and
appropriate; and provided,
further,
that so
long as the Preferred Securities are Book-Entry Preferred Securities, such
selection shall be made in accordance with the Applicable Depositary Procedures
for the Preferred Securities by such Depositary. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities
(or portion thereof) selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof
to be
redeemed. For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount of Preferred
Securities that has been or is to be redeemed.
(f) The
Trust
in issuing the Trust Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the “CUSIP” numbers of the
Trust Securities in notices of redemption and related materials as a convenience
to Holders; provided, that any such notice may state that no representation
is
made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related
materials.
SECTION
4.3. Subordination
of Common Securities.
(a) Payment
of Distributions (including any Additional Interest Amounts) on, the Redemption
Price of and the Liquidation Distribution in respect of, the Trust Securities,
as applicable, shall be made pro
rata
among
the Common Securities and the Preferred Securities based on the Liquidation
Amount of the respective Trust Securities; provided,
that if
on any Distribution Date, Redemption Date or Liquidation Date an Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including any Additional Interest Amounts) on, Redemption Price of or
Liquidation Distribution in respect of, any Common Security and no other payment
on account of the redemption, liquidation or other acquisition of Common
Securities shall be made unless payment in full in cash of all accumulated
and
unpaid Distributions (including any Additional Interest Amounts) on all
Outstanding Preferred Securities for all Distribution periods terminating on
or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities then called
for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately available to
the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Interest Amounts) on, or the Redemption
Price of or the Liquidation Distribution in respect of, the Preferred Securities
then due and payable.
(b) In
the
case of the occurrence of any Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of Default
under this Trust Agreement until all such Events of Default with respect to
the
Preferred Securities have been cured, waived or otherwise eliminated. Until
all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holders of the Common Securities, and only the Holders
of all the Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
SECTION
4.4. Payment
Procedures.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made by wire transfer at such place and to such account
at a
banking institution in the United States as may be designated in writing at
least ten (10) Business Days prior to the date for payment by the Person
entitled thereto unless proper written transfer instructions have not been
received by the relevant record date, in which case such payments shall be
made
by check mailed to the address of such Person as such address shall appear
in
the Securities Register. If any Preferred Securities are held by a Depositary,
such Distributions thereon shall be made to the Depositary in immediately
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, the Administrative Trustees and the Paying Agent 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 and
its
Paying Agent 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 and its Paying Agent 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 or any Paying Agent 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 or any Paying Agent on behalf of the Trust
may
reduce subsequent Distributions by the amount of such required
withholding.
SECTION
4.6. Tax
Returns and Other Reports.
The
Administrative Trustees shall prepare (or cause to be prepared) at the principal
office of the Trust in the United States, as defined for purposes of Treasury
regulations section 301.7701-7, at the Depositor’s expense, and file, all United
States federal, state and local tax and information returns and reports required
to be filed by or in respect of the Trust. The Administrative Trustees shall
prepare at the principal office of the Trust in the United States, as defined
for purposes of Treasury regulations section 301.7701-7, and furnish (or cause
to be prepared and furnished) by January 31 in each taxable year of the Trust
to
each Holder all Internal Revenue Service forms and returns required to be
provided by the Trust. The Administrative Trustees shall provide the Depositor,
Taberna Capital Management, LLC and the Property Trustee with a copy of all
such
returns and reports promptly after such filing or furnishing.
SECTION
4.7. Payment
of Taxes, Duties, Etc. of the Trust.
Upon
receipt under the Notes of Additional Tax Sums and upon the written direction
of
the Administrative Trustees, the Property Trustee shall promptly pay, solely
out
of monies on deposit pursuant to this Trust Agreement, any Additional Taxes
imposed on the Trust by the United States or any other taxing
authority.
SECTION
4.8. Payments
under Indenture or Pursuant to Direct Actions.
Any
amount payable hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder (or any Owner with
respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 6.10(b)
of this
Trust Agreement.
SECTION
4.9. Exchanges.
(a) If
at any
time the Depositor or any of its Affiliates (in either case, a “Depositor
Affiliate”)
is the
Owner or Holder of any Preferred Securities, such Depositor Affiliate shall
have
the right to deliver to the Property Trustee all or such portion of its
Preferred Securities as it elects and, subject to compliance with Sections
2.2
and 3.5 of the Indenture, receive, in exchange therefor, a Like Amount of Notes.
Such election shall be exercisable effective on any Distribution Date by such
Depositor Affiliate delivering to the Property Trustee (i) at least ten (10)
Business Days prior to the Distribution Date on which such exchange is to occur,
the registration instructions and the documentation, if any, required pursuant
to Sections 2.2 and 3.5 of the Indenture to enable the Indenture Trustee to
issue the requested Like Amount of Notes, (ii) a written notice of such election
specifying the Liquidation Amount of Preferred Securities with respect to which
such election is being made and the Distribution Date on which such exchange
shall occur, which Distribution Date shall be not less than ten (10) Business
Days after the date of receipt by the Property Trustee of such election notice
and (iii) shall be conditioned upon such Depositor Affiliate having delivered
or
caused to be delivered to the Property Trustee or its designee the Preferred
Securities that are the subject of such election by 10:00 a.m. New York time,
on
the Distribution Date on which such exchange is to occur. After the exchange,
such Preferred Securities will be canceled and will no longer be deemed to
be
Outstanding and all rights of the Depositor Affiliate with respect to such
Preferred Securities will cease.
(b) In
the
case of an exchange described in Section
4.9(a),
the
Property Trustee on behalf of the Trust will, on the date of such exchange,
exchange Notes having a principal amount equal to a proportional amount of
the
aggregate Liquidation Amount of the Outstanding Common Securities, based on
the
ratio of the aggregate Liquidation Amount of the Preferred Securities exchanged
pursuant to Section
4.9(a)
divided
by the aggregate Liquidation Amount of the Preferred Securities Outstanding
immediately prior to such exchange, for such proportional amount of Common
Securities held by the Depositor (which contemporaneously shall be canceled
and
no longer be deemed to be Outstanding); provided,
that
the Depositor delivers or causes to be delivered to the Property Trustee or
its
designee the required amount of Common Securities to be exchanged by 10:00
a.m.
New York time, on the Distribution Date on which such exchange is to
occur.
SECTION
4.10. Calculation
Agent.
(a) The
Calculation Agent may be removed by the Administrative Trustees at any time.
Notwithstanding the foregoing, the Property Trustee shall initially and, 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
(the Interest Payment shall be rounded to the nearest cent, with half a cent
being rounded upwards) for the related Distribution Date, and will communicate
such rate and amount to the Depositor, the Administrative Trustees, the Note
Trustee, each Paying Agent and the Depositary. The Calculation Agent will also
specify to the Administrative Trustees the quotations upon which the foregoing
rates and amounts are based and, in any event, the Calculation Agent shall
notify the Administrative Trustees before 5:00 p.m. (London time) on each LIBOR
Determination Date that either: (i) it has determined or is in the process
of determining the foregoing rates and amounts or (ii) it has not
determined and is not in the process of determining the foregoing rates and
amounts, together with its reasons therefor. The Calculation Agent’s
determination of the foregoing rates and amounts for any Distribution Date
will
(in the absence of manifest error) be final and binding upon all parties. For
the sole purpose of calculating the interest rate for the Trust Securities,
“Business Day” shall be defined as any day on which dealings in deposits in
Dollars are transacted in the London interbank market.
SECTION
4.11. Certain
Accounting Matters.
(a) At
all
times during the existence of the Trust, the Administrative Trustees shall
keep,
or cause to be kept at the principal office of the Trust in the United States,
as defined for purposes of Treasury Regulations section 301.7701-7, full books
of account, records and supporting documents, which shall reflect in reasonable
detail each transaction of the Trust. The books of account shall be maintained
on the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied.
(b) The
Administrative Trustees shall either (i) if the Depositor is then subject to
such reporting requirements, cause each Form 10-K and Form 10-Q prepared by
the
Depositor and filed with the Commission in accordance with the Exchange Act
to
be delivered to each Holder, with a copy to the Property Trustee, within thirty
(30) days after the filing thereof or (ii) cause to be prepared at the
principal office of the Trust in the United States, as defined for purposes
of
Treasury Regulations section 301.7701-7, and delivered to each of the Holders,
with a copy to the Property Trustee, within ninety (90) days after the end
of
each Fiscal Year, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) If
the
Depositor intends to file its annual and quarterly information with the
Commission in electronic form pursuant to Regulation S-T of the Commission
using
the Commission’s Electronic Data Gathering, Analysis and Retrieval
(“EDGAR”)
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 EDGAR system for
purposes of retrieving the financial information so filed. Compliance with
the
foregoing shall constitute delivery by the Administrative Trustees of its
financial statements to the Property Trustee in compliance with the provisions
of Section 314(a) of the Trust Indenture Act, if applicable. The Property
Trustee shall have no duty to search for or obtain any electronic or other
filings that the Depositor makes with the Commission, regardless of whether
such
filings are periodic, supplemental or otherwise. Delivery of reports,
information and documents to the Property Trustee pursuant to this Section
4.11(c)
shall be
solely for purposes of compliance with this Section
4.11
and, if
applicable, with Section 314(a) of the Trust Indenture Act. The Property
Trustee’s receipt of such reports, information and documents shall not
constitute notice to it of the content thereof or any matter determinable from
the content thereof, including the Depositor’s compliance with any of its
covenants hereunder, as to which the Property Trustee is entitled to rely upon
Officers’ Certificates.
(d) The
Trust
shall maintain one or more bank accounts in the United States, as defined for
purposes of Treasury Regulations section 301.7701-7, in the name and for the
sole benefit of the Trust; provided,
however,
that all
payments of funds in respect of the Notes held by the Property Trustee shall
be
made directly to the Payment Account and no other funds of the Trust shall
be
deposited in the Payment Account. The sole signatories for such accounts
(including the Payment Account) shall be designated by the Property
Trustee.
ARTICLE
V
Securities
SECTION
5.1. Initial
Ownership.
Upon
the
creation of the Trust and the contribution by the Depositor referred to in
Section 2.3
and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION
5.2. Authorized
Trust Securities.
The
Trust
shall be authorized to issue one series of Preferred Securities having an
aggregate Liquidation Amount of One Hundred Million Dollars ($100,000,000)
and
one series of Common Securities having an aggregate Liquidation Amount of Three
Million One Hundred Thousand Dollars ($3,100,000).
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 Three Thousand One Hundred
(3,100) Common Securities having an aggregate Liquidation Amount of Three
Million One Hundred Thousand Dollars ($3,100,000), against receipt by the Trust
of the aggregate purchase price of such Common Securities of Three Million
One
Hundred Thousand Dollars ($3,100,000). Contemporaneously therewith and with
the
sale by the Trust to the Holders of an aggregate of One Hundred Thousand
(100,000) Preferred Securities having an aggregate Liquidation Amount of One
Hundred Million Dollars ($100,000,000), an Administrative Trustee shall direct
the purchase, on behalf of the Trust, 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 One Hundred Three Million One Hundred
Thousand Dollars ($103,100,000), 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 One Hundred Three Million One Hundred Thousand Dollars
($103,100,000) (being the aggregate amount paid by the Holders for the Preferred
Securities, and the amount paid by the Depositor for the Common
Securities).
SECTION
5.4. The
Securities Certificates.
(a) The
Preferred Securities Certificates shall be issued in minimum denominations
of
$100,000 Liquidation Amount and integral multiples of $1,000 in excess thereof,
and the Common Securities Certificates shall be issued in minimum denominations
of $10,000 Liquidation Amount and integral multiples of $1,000 in excess
thereof. The Securities Certificates shall be executed on behalf of the Trust
by
manual or facsimile signature of at least one Administrative Trustee. Securities
Certificates bearing the signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign such Securities
Certificates on behalf of the Trust shall be validly issued and entitled to
the
benefits of this Trust Agreement, notwithstanding that such individuals or
any
of them shall have ceased to be so authorized prior to the delivery of such
Securities Certificates or did not have such authority at the date of delivery
of such Securities Certificates.
(b) On
the
Closing Date, upon the written order of an authorized officer of the Depositor,
the Administrative Trustees shall cause Securities Certificates to be executed
on behalf of the Trust and delivered, without further corporate action by the
Depositor, in authorized denominations.
(c) The
Preferred Securities issued to QIBs/QPs shall be, except as provided in
Section
5.6,
Book-Entry Preferred Securities issued in the form of one or more Global
Preferred Securities registered in the name of the Depositary, or its nominee
and deposited with the Depositary or a custodian for the Depositary for credit
by the Depositary to the respective accounts of the Depositary Participants
thereof (or such other accounts as they may direct). The Preferred Securities
issued to a Person other than a QIB/QP shall be issued in the form of Definitive
Preferred Securities Certificates.
(d) A
Preferred Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. Such signature
shall be conclusive evidence that the Preferred Security has been authenticated
under this Trust Agreement. Upon written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate the Preferred
Securities for original issue. The Property Trustee may appoint an
authenticating agent that is a U.S. Person acceptable to the Trust to
authenticate the Preferred Securities. A Common Security need not be so
authenticated and shall be valid upon execution by one or more Administrative
Trustees. The form of this certificate of authentication can be found in
Section
5.13.
SECTION
5.5. Rights
of Holders.
(a) The
Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Holders against payment of the purchase price therefor will be
fully paid and non-assessable by the Trust. Except as provided in Section
5.11(b),
the
Holders of the Trust Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State
of Delaware.
SECTION
5.6. Book-Entry
Preferred Securities.
(a) A
Global
Preferred Security may be exchanged, in whole or in part, for Definitive
Preferred Securities Certificates registered in the names of the Owners only
if
such exchange complies with Section
5.7
and
(i) the Depositary advises the Administrative Trustees and the Property
Trustee in writing that the Depositary is no longer willing or able properly
to
discharge its responsibilities with respect to the Global Preferred Security,
and no qualified successor is appointed by the Administrative Trustees within
ninety (90) days of receipt of such notice, (ii) the Depositary ceases to
be a clearing agency registered under the Exchange Act and the Administrative
Trustees fail to appoint a qualified successor within ninety (90) days of
obtaining knowledge of such event, (iii) the Administrative Trustees at their
option advise the Property Trustee in writing that the Trust elects to terminate
the book-entry system through the Depositary or (iv) a Note Event of
Default has occurred and is continuing. Upon the occurrence of any event
specified in clause (i), (ii), (iii) or (iv) above, the Administrative Trustees
shall notify the Depositary and instruct the Depositary to notify all Owners
of
Book-Entry Preferred Securities, the Delaware Trustee and the Property Trustee
of the occurrence of such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of the Preferred Securities
requesting the same. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Holders. Notwithstanding the foregoing,
if
an Owner of a beneficial interest in a Global Preferred Security wishes at
any
time to transfer an interest in such Global Preferred Security to a Person
other
than a QIB/QP, such transfer shall be effected, subject to the Applicable
Depositary Procedures, in accordance with the provisions of this Section
5.6
and
Section
5.7,
and the
transferee shall receive a Definitive Preferred Securities Certificate in
connection with such transfer. A holder of a Definitive Preferred Securities
Certificate that is a QIB/QP may, upon request and in accordance with the
provisions of this Section
5.6
and
Section
5.7,
exchange such Definitive Preferred Securities Certificate for a beneficial
interest in a Global Preferred Security.
(b) If
any
Global Preferred Security is to be exchanged for Definitive Preferred Securities
Certificates or canceled in part, or if any Definitive Preferred Securities
Certificate is to be exchanged in whole or in part for any Global Preferred
Security, then either (i) such Global Preferred Security shall be so surrendered
for exchange or cancellation as provided in this Article
V
or (ii)
the aggregate Liquidation Amount represented by such Global Preferred Security
shall be reduced, subject to Section
5.4,
or
increased by an amount equal to the Liquidation Amount represented by that
portion of the Global Preferred Security to be so exchanged or canceled, or
equal to the Liquidation Amount represented by such Definitive Preferred
Securities Certificates to be so exchanged for any Global Preferred Security,
as
the case may be, by means of an appropriate adjustment made on the records
of
the Securities Registrar, whereupon the Property Trustee, in accordance with
the
Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender to the Administrative Trustees or the Securities
Registrar of any Global Preferred Security or Securities by the Depositary,
accompanied by registration instructions, the Administrative Trustees, or any
one of them, shall execute the Definitive Preferred Securities Certificates
in
accordance with the instructions of the Depositary. None of the Securities
Registrar or the Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(c) Every
Definitive Preferred Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof shall be executed and delivered in
the
form of, and shall be, a Global Preferred Security, unless such Definitive
Preferred Securities Certificate is registered in the name of a Person other
than the Depositary for such Global Preferred Security or a nominee
thereof.
(d) The
Depositary or its nominee, as registered owner of a Global Preferred Security,
shall be the Holder of such Global Preferred Security for all purposes under
this Trust Agreement and the Global Preferred Security, and Owners with respect
to a Global Preferred Security shall hold such interests pursuant to the
Applicable Depositary Procedures. The Securities Registrar and the Trustees
shall be entitled to deal with the Depositary for all purposes of this Trust
Agreement relating to the Global Preferred Securities (including the payment
of
the Liquidation Amount of and Distributions on the Book-Entry Preferred
Securities represented thereby and the giving of instructions or directions
by
Owners of Book-Entry Preferred Securities represented thereby and the giving
of
notices) as the sole Holder of the Book-Entry Preferred Securities represented
thereby and shall have no obligations to the Owners thereof. None of the
Trustees nor the Securities Registrar shall have any liability in respect of
any
transfers effected by the Depositary.
(e) The
rights of the Owners of the Book-Entry Preferred Securities shall be exercised
only through the Depositary and shall be limited to those established by law,
the Applicable Depositary Procedures and agreements between such Owners and
the
Depositary and/or the Depositary Participants; provided,
that
solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, to the extent that Preferred Securities are represented by
a
Global Preferred Security, the Trustees may conclusively rely on, and shall
be
fully protected in relying on, any written instrument (including a proxy)
delivered to the Property Trustee by the Depositary setting forth the Owners’
votes or assigning the right to vote on any matter to any other Persons either
in whole or in part. To the extent that Preferred Securities are represented
by
a Global Preferred Security, the initial Depositary will make book-entry
transfers among the Depositary Participants and receive and transmit payments
on
the Preferred Securities that are represented by a Global Preferred Security
to
such Depositary Participants, and none of the Depositor or the Trustees shall
have any responsibility or obligation with respect thereto.
(f) To
the
extent that a notice or other communication to the Holders is required under
this Trust Agreement, for so long as Preferred Securities are represented by
a
Global Preferred Security, the Trustees shall give all such notices and
communications to the Depositary, and shall have no obligations to the
Owners.
SECTION
5.7. Registration
of Transfer and Exchange of Preferred Securities Certificates.
(a) The
Property Trustee shall keep or cause to be kept, at the Corporate Trust Office,
a register or registers (the “Securities
Register”)
in
which the registrar and transfer agent with respect to the Trust Securities
(the
“Securities
Registrar”),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Preferred Securities Certificates and Common Securities
Certificates and registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Person acting as the Property Trustee
shall
at all times also be the Securities Registrar. The provisions of Article
VIII
shall
apply to the Property Trustee in its role as Securities Registrar.
(b) Subject
to Section
5.7(d),
upon
surrender for registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to Section 5.7(f),
the
Administrative Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee, and the Property Trustee upon
written order of the Trust signed by one Administrative Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount as may be required by
this
Trust Agreement dated the date of execution by such Administrative Trustee
or
Trustees. At the option of a Holder, Preferred Securities Certificates may
be
exchanged for other Preferred Securities Certificates in authorized
denominations and of a like aggregate Liquidation Amount upon surrender of
the
Preferred Securities Certificate to be exchanged at the office or agency
maintained pursuant to Section
5.7(f).
Whenever any Preferred Securities Certificates are so surrendered for exchange,
the Administrative Trustees or any one of them shall execute by manual or
facsimile signature and deliver to the Property Trustee, and the Property
Trustee upon written order of the Trust signed by one Administrative 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 (i) the Depositor, (ii) a
QIB/QP, (iii) outside the United States in an offshore transaction in accordance
with Regulation S under the Securities Act, (iv) pursuant to an effective
registration statement under the Securities Act or (v) pursuant to another
exemption from registration under the Securities 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 Property Trustee or the Securities Registrar by a Holder or
transferee of a Preferred Security, the Property Trustee and the Securities
Registrar shall be under a duty to receive and examine the same to determine
whether or not the certificate substantially conforms on its face to the
requirements of this Trust Agreement and shall promptly notify the party
delivering the same if such certificate does not comply with such
terms.
SECTION
5.8. Mutilated,
Destroyed, Lost or Stolen Securities Certificates.
(a) If
any
mutilated Securities Certificate shall be surrendered to the Securities
Registrar together with such security or indemnity as may be required by the
Securities Registrar to save each of the Trustees harmless, the Administrative
Trustees, or any one of them, on behalf of the Trust, shall execute and make
available for delivery and, with respect to Preferred Securities, the Property
Trustee or an authenticating agent shall authenticate, in exchange therefor
a
new Securities Certificate of like class, tenor and denomination.
(b) If
the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Securities Certificate and there shall be
delivered to the Securities Registrar such security or indemnity as may be
required by it to save each of the Trustees harmless, then in the absence of
notice that such Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust, shall execute and make available for delivery, and, with respect to
Preferred Securities, the Property Trustee upon written order of the Trust
signed by one Administrative Trustee shall authenticate, in exchange for or
in
lieu of any such destroyed, lost or stolen Securities Certificate, a new
Securities Certificate of like class, tenor and denomination.
(c) In
connection with the issuance of any new Securities Certificate under this
Section 5.8,
the
Administrative Trustees or the Securities Registrar may require the payment
of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
(d) Any
duplicate Securities Certificate issued pursuant to this Section 5.8
shall
constitute conclusive evidence of an undivided beneficial interest in the assets
of the Trust corresponding to that evidenced by the mutilated, lost, stolen
or
destroyed Securities Certificate, as if originally issued, whether or not the
lost, stolen or destroyed Securities Certificate shall be found at any
time.
(e) If
any
such mutilated, destroyed, lost or stolen Securities Certificate has become
or
is about to become due and payable, the Depositor in its discretion may provide
the Property Trustee or Paying Agent, as applicable, with the funds to pay
such
Trust Security and upon receipt of such funds, the Property Trustee or Paying
Agent, as applicable, shall pay such Trust Security instead of issuing a new
Securities Certificate.
(f) The
provisions of this Section
5.8
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, destroyed, lost or stolen
Securities Certificates.
SECTION
5.9. Persons
Deemed Holders.
The
Trustees and the Securities Registrar shall each treat the Person in whose
name
any Securities Certificate shall be registered in the Securities Register as
the
owner of such Securities Certificate for the purpose of receiving Distributions
and for all other purposes whatsoever, and none of the Trustees and the
Securities Registrar shall be bound by any notice to the contrary.
SECTION
5.10. Cancellation.
All
Preferred Securities Certificates surrendered for registration of transfer
or
exchange or for payment shall, if surrendered to any Person other than the
Property Trustee, be delivered to the Property Trustee, and any such Preferred
Securities Certificates and Preferred Securities Certificates surrendered
directly to the Property Trustee for any such purpose shall be promptly canceled
by it. The Administrative Trustees may at any time deliver to the Property
Trustee for cancellation any Preferred Securities Certificates previously
delivered hereunder that the Administrative Trustees may have acquired in any
manner whatsoever, and all Preferred Securities Certificates so delivered shall
be promptly canceled by the Property Trustee. No Preferred Securities
Certificates shall be executed and delivered in lieu of or in exchange for
any
Preferred Securities Certificates canceled as provided in this Section
5.10,
except
as expressly permitted by this Trust Agreement. All canceled Preferred
Securities Certificates shall be retained by the Property Trustee in accordance
with its customary practices.
SECTION
5.11. Ownership
of Common Securities by Depositor.
(a) On
the
Closing Date, the Depositor shall acquire, and thereafter shall retain,
beneficial and record ownership of the Common Securities. Neither the Depositor
nor any successor Holder of the Common Securities may transfer less than all
the
Common Securities, and the Depositor or any such successor Holder may transfer
the Common Securities only (i) in connection with a consolidation or merger
of the Depositor into another Person, or any conveyance, transfer or lease
by
the Depositor of its properties and assets substantially as an entirety to
any
Person (in which event such Common Securities will be transferred to such
surviving entity, transferee or lessee, as the case may be), pursuant to
Section 8.1 of the Indenture or (ii) to the Depositor or an Affiliate
of the Depositor, in each such case in compliance with applicable law (including
the Securities Act, and applicable state securities and blue sky laws). To
the
fullest extent permitted by law, any attempted transfer of the Common Securities
other than as set forth in the immediately preceding sentence shall be void.
The
Administrative Trustees shall cause each Common Securities Certificate issued
to
the Depositor to contain a legend stating substantially “THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT.”
(b) Any
Holder of the Common Securities shall be liable for the debts and obligations
of
the Trust in the manner and to the extent set forth with respect to the
Depositor and agrees that it shall be subject to all liabilities to which the
Depositor may be subject and, prior to becoming such a Holder, shall deliver
to
the Administrative Trustees an instrument of assumption satisfactory to such
Trustees.
SECTION
5.12. Restricted
Legends.
(a) Each
Preferred Security Certificate shall bear a legend in substantially the
following form:
“[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS
PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC
OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT,
AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS
PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF
DTC
TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS
THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO
REDWOOD CAPITAL TRUST I OR
ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE
PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST
THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF
THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE
HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II)
TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND A “QUALIFIED PURCHASER”
(AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED), (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (V) PURSUANT
TO
ANOTHER EXEMPTION FROM REGISTRATION UNDER 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.
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 PREFERRED 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 UNLESS SUCH
ACQUIROR OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-28,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS ACQUISITION AND HOLDING
OF
THIS PREFERRED SECURITY, OR ANY INTEREST HEREIN, ARE NOT PROHIBITED BY SECTION
406 OF ERISA OR SECTION 2975 OF THE CODE WITH RESPECT TO SUCH ACQUISITION OR
HOLDING. 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 EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION
3(3) OF ERISA, OR OTHER PLAN TO WHICH TITLE 1 OF ERISA OR SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN, OR ANY
OTHER
PERSON OR ENTITY USING THE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
PLAN TO FINANCE SUCH PURCHASE OR (ii) SUCH ACQUISITION OR HOLDING WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH FULL EXEMPTION RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.”
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE “FDIC”)”
(b) The
above
legend shall not be removed from any of the Preferred Securities Certificates
unless there is delivered to the Property Trustee and the Depositor satisfactory
evidence, which may include an Opinion of Counsel, as may be reasonably required
to ensure that any future transfers thereof may be made without restriction
under the provisions of the Securities Act and other applicable law. Upon
provision of such satisfactory evidence, one or more of the Administrative
Trustees on behalf of the Trust shall execute and deliver to the Property
Trustee, and the Property Trustee shall deliver, at the written direction of
the
Administrative Trustees and the Depositor, Preferred Securities Certificates
that do not bear the legend.
SECTION
5.13. Form
of Certificate of Authentication.
The
Property Trustee’s certificate of authentication shall be in substantially the
following form:
This
is
one of the Preferred Securities referred to in the within-mentioned Trust
Agreement.
| |
|
|
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Dated:
|
The
Bank of New
York Trust Company,
National
Association,
not in its individual capacity, but solely as Property
Trustee |
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By: |
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Authorized
signatory
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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.
SECTION
6.3. Voting
Rights.
Holders
shall be entitled to one vote for each $10,000 of Liquidation Amount represented
by their Outstanding Trust Securities in respect of any matter as to which
such
Holders are entitled to vote.
SECTION
6.4. Proxies,
Etc.
At
any
meeting of Holders, any Holder entitled to vote thereat may vote by proxy,
provided,
that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to
the
time at which such vote shall be taken. Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one
or
more officers of the Property Trustee. Only Holders of record shall be entitled
to vote. When Trust Securities are held jointly by several Persons, any one
of
them may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and the
burden of proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution.
SECTION
6.5. Holder
Action by Written Consent.
Any
action that may be taken by Holders at a meeting may be taken without a meeting
and without prior notice if Holders holding at least a Majority in Liquidation
Amount of all Preferred Securities entitled to vote in respect of such action
(or such lesser or greater proportion thereof as shall be required by any other
provision of this Trust Agreement) shall consent to the action in writing;
provided,
that
notice of such action is promptly provided to the Holders of Preferred
Securities that did not consent to such action. Any action that may be taken
by
the Holders of all the Common Securities may be taken without a meeting and
without prior notice if such Holders shall consent to the action in
writing.
SECTION
6.6. Record
Date for Voting and Other Purposes.
Except
as
provided in Section
6.10(a),
for the
purposes of determining the Holders who are entitled to notice of and to vote
at
any meeting or to act by written consent, or to participate in any distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than
ninety (90) days prior to the date of any meeting of Holders or the payment
of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such
purposes.
SECTION
6.7. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Trust Agreement to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
thereof duly appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or instruments
are delivered to an Administrative Trustee. Such instrument or instruments
(and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “Act”
of
the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Trust Agreement and conclusive in favor of the Trustees, if
made
in the manner provided in this Section
6.7.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than such signer’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer’s
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Trustee receiving the same deems sufficient.
(c) The
ownership of Trust Securities shall be proved by the Securities
Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Trust Security shall bind every future Holder of the same
Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in
respect of anything done, omitted or suffered to be done by the Trustees, the
Administrative Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Trust Security may do so with regard to all or
any
part of the Liquidation Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such Liquidation Amount.
(f) If
any
dispute shall arise among the Holders or the Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, notice, consent, waiver or other Act of such Holder or Trustee under
this Article
VI,
then
the determination of such matter by the Property Trustee shall be conclusive
with respect to such matter.
SECTION
6.8. Inspection
of Records.
Upon
reasonable written notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by any Holder
during normal business hours for any purpose reasonably related to such Holder’s
interest as a Holder.
SECTION
6.9. Limitations
on Voting Rights.
(a) Except
as
expressly provided in this Trust Agreement and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to
vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Securities Certificates, be
construed so as to constitute the Holders from time to time as partners or
members of an association.
(b) So
long
as any Notes are held by the Property Trustee on behalf of the Trust, the
Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Note Trustee, or
exercise any trust or power conferred on the Property Trustee with respect
to
the Notes, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture or waive compliance with any covenant or
condition under Section 10.7 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Notes shall be
due
and payable or (iv) consent to any amendment, modification or termination
of the Indenture or the Notes, where such consent shall be required, without,
in
each case, obtaining the prior approval of the Holders of at least a Majority
in
Liquidation Amount of the Preferred Securities; provided,
that
where a consent under the Indenture would require the consent of each holder
of
Notes (or each Holder of Preferred Securities) affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of
each
Holder of Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities, except by a subsequent vote of the Holders of the Preferred
Securities. In addition to obtaining the foregoing approvals of the Holders
of
the Preferred Securities, prior to taking any of the foregoing actions, the
Property Trustee shall, at the expense of the Depositor, obtain an Opinion
of
Counsel experienced in such matters to the effect that such action shall not
cause the Trust to be taxable as a corporation or classified as other than
a
grantor trust for United States 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 United States federal income tax
purposes.
SECTION
6.10. Acceleration
of Maturity; Rescission of Annulment; Waivers of Past
Defaults.
(a) For
so
long as any Preferred Securities remain Outstanding, if, upon a Note Event
of
Default, the Note Trustee fails or the holders of not less than twenty-five
percent (25%) in principal amount of the outstanding Notes fail to declare
the
principal of all of the Notes to be immediately due and payable, the Holders
of
at least twenty-five percent (25%) in Liquidation Amount of the Preferred
Securities then Outstanding shall have the right to make such declaration by
a
notice in writing to the Property Trustee, the Depositor and the Note Trustee.
At any time after a declaration of acceleration with respect to the Notes has
been made and before a judgment or decree for payment of the money due has
been
obtained by the Note Trustee as provided in the Indenture, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities, by written
notice to the Property Trustee, the Depositor and the Note Trustee, may rescind
and annul such declaration and its consequences if:
(i) the
Depositor has paid or deposited with the Note Trustee a sum sufficient to
pay:
(A) all
overdue installments of interest on all of the Notes;
(B) any
accrued Additional Interest on all of the Notes;
(C) the
principal of and premium, if any, on any Notes that have become due otherwise
than by such declaration of acceleration and interest and Additional Interest
thereon at the rate borne by the Notes; and
(D) all
sums
paid or advanced by the Note Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Note Trustee, the
Property Trustee and their agents and counsel; and
(ii) all
Note
Events of Default, other than the non-payment of the principal of the Notes
that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
Upon
receipt by the Property Trustee of written notice requesting such an
acceleration, or rescission and annulment thereof, by Holders of any part of
the
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders 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 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
8.7,
the
Property Trustee shall have the right to decline to follow any such direction
if
the Property Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Property Trustee in good faith
shall, by an officer or officers of the Property Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability
or
be unduly prejudicial to the rights of Holders not party to such direction,
and
provided,
further,
that
nothing in this Trust Agreement shall impair the right of the Property Trustee
to take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction.
ARTICLE
VII
Representations
and Warranties
SECTION
7.1. Representations
and Warranties of the Property Trustee and the Delaware
Trustee.
The
Property Trustee and the Delaware Trustee, each severally on behalf of and
as to
itself, hereby represents and warrants for the benefit of the Depositor and
the
Holders that:
(a) the
Property Trustee is a national banking association, duly organized and validly
existing under the laws of the United States of America;
(b) the
Property Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
(c) the
Delaware Trustee is a Delaware banking corporation, duly incorporated and
validly existing under the laws of the State of Delaware;
(d) the
Delaware Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
(e) this
Trust Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the legal, valid and binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable
against each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws affecting creditors’ rights generally and to general principles of
equity;
(f) the
execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Certificate or
Articles of Incorporation 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;
(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 the stockholders of the Depositor
and such execution, delivery and performance will not (i) violate the
articles of incorporation (or other organizational documents) of the Depositor
or (ii) violate any applicable law, governmental rule or regulation
governing the Depositor or any material portion of its property or any order,
judgment or decree applicable to the Depositor or any material portion of its
property;
(f) neither
the authorization, execution or delivery by the Depositor of this Trust
Agreement nor the consummation of any of the transactions by the Depositor
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to
any
governmental authority or agency under any existing law governing the Depositor
or any material portion of its property; and
(g) there
are
no proceedings pending or, to the best of the Depositor’s knowledge, threatened
against or affecting the Depositor or any material portion of its property
in
any court or before any governmental authority, agency or arbitration board
or
tribunal that, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the
Depositor, as the case may be, to enter into or perform its obligations under
this Trust Agreement.
ARTICLE
VIII
The
Trustees
SECTION
8.1. Number
of Trustees.
The
number of Trustees shall be five (5); provided,
that the
Property Trustee and the Delaware Trustee may be the same Person, in which
case
the number of Trustees shall be four (4). The number of Trustees may be
increased or decreased by Act of the Holder of the Common Securities subject
to
Sections
8.2,
8.3,
and
8.4.
The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust.
SECTION
8.2. Property
Trustee Required.
There
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a corporation or national banking
association organized and doing business under the laws of the United States
or
of any state thereof, authorized to exercise corporate trust powers, having
or
having a parent that has a combined capital and surplus of at least fifty
million dollars ($50,000,000), subject to supervision or examination by federal
or state authority and having an office within the United States. If any such
Person publishes reports of condition at least annually pursuant to law or
to
the requirements of its supervising or examining authority, then for the
purposes of this Section
8.2,
the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee shall cease to be eligible in
accordance with the provisions of this Section
8.2,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article
VIII.
SECTION
8.3. Delaware
Trustee Required.
(a) If
required by the Delaware Statutory Trust Act, there shall at all times be a
Delaware Trustee with respect to the Trust Securities. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity that has its
principal place of business in the State of Delaware, otherwise meets the
requirements of applicable Delaware law and shall act through one or more
persons authorized to bind such entity. If at any time the Delaware Trustee
shall cease to be eligible in accordance with the provisions of this
Section
8.3,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article
VIII.
The
Delaware Trustee shall have the same rights, privileges and immunities as the
Property Trustee.
(b) The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the trustees of the Trust for the sole and limited purpose
of
fulfilling the requirements of Section 3807 of the Delaware Statutory Trust
Act and for taking such actions as are required to be taken by a Delaware
trustee under the Delaware Statutory Trust Act. The duties (including fiduciary
duties), liabilities and obligations of the Delaware Trustee shall be limited
to
(a) accepting legal process served on the Trust in the State of Delaware and
(b)
the execution of any certificates required to be filed with the Secretary of
State of the State of Delaware that the Delaware Trustee is required to execute
under Section 3811 of the Delaware Statutory Trust Act and there shall be no
other duties (including fiduciary duties) or obligations, express or implied,
at
law or in equity, of the Delaware Trustee.
SECTION
8.4. Appointment
of Administrative Trustees.
(a) There
shall at all times be one or more Administrative Trustees hereunder with respect
to the Trust Securities. Each Administrative Trustee shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity. Each of the individuals
identified as an “Administrative
Trustee” in the preamble of this Trust Agreement hereby accepts his or her
appointment as such.
(b) Except
where a requirement for action by a specific number of Administrative Trustees
is expressly set forth in this Trust Agreement, any act required or permitted
to
be taken by, and any power of the Administrative Trustees may be exercised
by,
or with the consent of, any one such Administrative Trustee. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section 8.11,
the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all
the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION
8.5. Duties
and Responsibilities of the Trustees.
(a) The
rights, immunities, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and there shall be no other duties (including
fiduciary duties) or obligations, express or implied, at law or in equity,
of
the Trustees; provided,
however,
that if
an Event of Default known to the Property Trustee has occurred and is
continuing, the Property Trustee shall, prior to the receipt of directions,
if
any, from the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, exercise such of the rights and powers vested in it by
this Trust Agreement, and use the same degree of care and skill in its exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs. Notwithstanding the foregoing, no provision of
this Trust Agreement shall require any of the Trustees to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its or their rights or
powers, if it or they shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section
8.5.
Nothing
in this Trust Agreement shall be construed to release any Administrative Trustee
from liability for his or her own negligent action, negligent failure to act;
or
his or her own willful misconduct. To the extent that, at law or in equity,
a
Trustee has duties and liabilities relating to the Trust or to the Holders,
such
Trustee shall not be liable to the Trust or to any Holder for such Trustee’s
good faith reliance on the provisions of this Trust Agreement. The provisions
of
this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Depositor and the Holders to replace such other duties and liabilities
of
the Trustees.
(b) All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by
its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security
or
for any other liability in respect of any Trust Security. This Section 8.5(b)
does not
limit the liability of the Trustees expressly set forth elsewhere in this Trust
Agreement.
(c) No
provisions of this Trust Agreement shall be construed to relieve the Property
Trustee from liability with respect to matters that are within the authority
of
the Property Trustee under this Trust Agreement for its own negligent action,
negligent failure to act or willful misconduct, except that:
(i) the
Property Trustee shall not be liable for any error or judgment made in good
faith by an authorized officer of the Property Trustee, unless it shall be
proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
(ii) the
Property Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders
of at least a Majority in Liquidation Amount of the Preferred
Securities;
(iii) the
Property Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Notes and the Payment Account shall be to deal
with
such Property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement;
(iv) the
Property Trustee shall not be liable for any interest on any money received
by
it except as it may otherwise agree in writing with the Depositor; and money
held by the Property Trustee need not be segregated from other funds held by
it
except in relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.1
and
except to the extent otherwise required by law; and
(v) the
Property Trustee shall not be responsible for monitoring the compliance by
the
Administrative Trustees or the Depositor with their respective duties under
this
Trust Agreement, nor shall the Property Trustee be liable for the default or
misconduct of any other Trustee or the Depositor.
SECTION
8.6. Notices
of Defaults and Extensions.
(a) Within
ninety (90) days after the occurrence of a default actually known to the
Property Trustee, the Property Trustee shall transmit notice of such default
to
the Holders, the Administrative Trustees and the Depositor, unless such default
shall have been cured or waived. For the purpose of this Section
8.6,
the
term “default”
means
any event that is, or after notice or lapse of time or both would become, an
Event of Default.
(b) The
Property Trustee shall not be charged with knowledge of any default or Event
of
Default unless either (i) a Responsible Officer of the Property Trustee shall
have actual knowledge or (ii) the Property Trustee shall have received written
notice thereof from the Depositor, an Administrative Trustee or a
Holder.
(c) The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Notes.
SECTION
8.7. Certain
Rights of Property Trustee.
Subject
to the provisions of Section 8.5:
(a) the
Property Trustee may conclusively rely and shall be protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, Opinion of Counsel, certificate, written representation
of
an Administrative Trustee, a Holder or transferee, certificate of auditors
or
any other resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be
genuine and to have been signed or presented by the proper party or
parties;
(b) if
(i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Trust Agreement the
Property Trustee finds a provision ambiguous or inconsistent with any other
provisions contained herein or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to any
matter as to which the Holders of the Preferred Securities are entitled to
vote
under the terms of this Trust Agreement, the Property Trustee shall deliver
a
notice to the Depositor requesting the Depositor’s written instruction as to the
course of action to be taken and the Property Trustee shall take such action,
or
refrain from taking such action, as the Property Trustee shall be instructed
in
writing to take, or to refrain from taking, by the Depositor; provided, that
if
the Property Trustee does not receive such instructions of the Depositor within
ten (10) Business Days after it has delivered such notice or such reasonably
shorter period of time set forth in such notice, the Property Trustee may,
but
shall be under no duty to, take such action, or refrain from taking such action,
as the Property Trustee shall deem advisable and in the best interests of the
Holders, in which event the Property Trustee shall have no liability except
for
its own negligence, bad faith or willful misconduct;
(c) any
direction or act of the Depositor contemplated by this Trust Agreement shall
be
sufficiently evidenced by an Officers’ Certificate unless otherwise expressly
provided herein;
(d) any
direction or act of an Administrative Trustee contemplated by this Trust
Agreement shall be sufficiently evidenced by a certificate executed by such
Administrative Trustee and setting forth such direction or act;
(e) the
Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any re-recording,
re-filing or re-registration thereof;
(f) the
Property Trustee may consult with counsel (which counsel may be counsel to
the
Property Trustee, the Depositor or any of its Affiliates, and may include any
of
its employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the
Property Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by this Trust Agreement at the request or direction of
any
of the Holders pursuant to this Trust Agreement, unless such Holders shall
have
offered to the Property Trustee reasonable security or indemnity against the
costs, expenses (including reasonable attorneys’ fees and expenses) and
liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Property
Trustee; provided,
however,
that
nothing contained in this Section
8.7(g)
shall be
construed to relieve the Property Trustee, upon the occurrence of an Event
of
Default (of which the Property Trustee has knowledge (as provided in
Section
8.6(b)
hereof)), of its obligation to exercise the rights and powers vested in it
by
this Trust Agreement; provided, further, that nothing contained in this
Section
8.7(g)
shall
prevent the Property Trustee from exercising its rights under Section
8.11
hereof;
(h) the
Property Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Property Trustee
may make such further inquiry or investigation into such facts or matters as
it
may see fit, and, if the Property Trustee shall determine to make such inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Depositor, personally or by agent or attorney;
(i) the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents, attorneys,
custodians or nominees and the Property Trustee shall not be responsible for
any
negligence or misconduct on the part of any such agent, attorney, custodian
or
nominee appointed with due care by it hereunder;
(j) whenever
in the administration of this Trust Agreement the Property Trustee shall deem
it
desirable to receive instructions with respect to enforcing any remedy or right
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be entitled
to
direct the Property Trustee under this Trust Agreement in respect of such
remedy, right or action), (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received and
(iii) shall be protected in acting in accordance with such
instructions;
(k) except
as
otherwise expressly provided by this Trust Agreement, the Property Trustee
shall
not be under any obligation to take any action that is discretionary under
the
provisions of this Trust Agreement;
(l) without
prejudice to any other rights available to the Property Trustee under applicable
law, when the Property Trustee incurs expenses or renders services in connection
with a Bankruptcy Event, such expenses (including legal fees and expenses of
its
agents and counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally; 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 conclusively rely on an Officers’ Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor.
(n) in
the
event that the Property Trustee is also acting as Paying Agent, Authenticating
Agent (as defined in the Indenture), Securities Registrar or Calculation Agent
hereunder, the rights and protections afforded the Property Trustee pursuant
to
this Article
VIII
shall
also be afforded such Paying Agent, Authenticating Agent, Securities Registrar
or Calculation Agent.
No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation.
SECTION
8.8. Delegation
of Power.
Any
Trustee may, by power of attorney consistent with applicable law, delegate
to
any other natural person over the age of 21 its, his or her power for the
purpose of executing any documents contemplated in Section 2.5.
The
Trustees shall have power to delegate from time to time to such of their number
or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, to the extent such delegation
is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
SECTION
8.9. May
Hold Securities.
Any
Trustee or any other agent of any Trustee or the Trust, in its individual or
any
other capacity, may become the owner or pledgee of Trust Securities and except
as provided in the definition of the term “Outstanding”
in
Article
I,
may
otherwise deal with the Trust with the same rights it would have if it were
not
a Trustee or such other agent.
SECTION
8.10. Compensation;
Reimbursement; Indemnity.
The
Depositor agrees:
(a) to
pay to
the Trustees from time to time such reasonable compensation for all services
rendered by them hereunder as may be agreed by the Depositor and the Trustees
from time to time (which compensation shall not be limited by any provision
of
law in regard to the compensation of a trustee of an express
trust);
(b) to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their gross negligence, bad
faith or willful misconduct; and
(c) to
the
fullest extent permitted by applicable law, to indemnify and hold harmless
(i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any Trustee
or any Affiliate of any Trustee and (iv) any employee or agent of the Trust
(referred to herein as an “Indemnified
Person”)
from
and against any loss, damage, liability, tax (other than income, franchise
or
other taxes imposed on amounts paid pursuant to Section
8.10(a)
or
(b)
hereof),
penalty, expense or claim of any kind or nature whatsoever incurred without
negligence, bad faith or willful misconduct on its part, arising out of or
in
connection with the acceptance or administration of the Trust hereunder,
including the advancement of funds to cover the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The
Trust
shall have no payment, reimbursement or indemnity obligations to the Trustees
under this Section
8.10.
The
provisions of this Section 8.10
shall
survive the termination of this Trust Agreement and the earlier removal or
resignation of any Trustee.
No
Trustee may claim any Lien on any Trust Property whether before or after
termination of the Trust as a result of any amount due pursuant to this
Section 8.10.
To
the
fullest extent permitted by law, in no event shall the Administrative Trustees,
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 or the Delaware Trustee be liable for any
failure or delay in the performance of its obligations hereunder because of
circumstances beyond its control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot, embargo,
government action, including any laws, ordinances, regulations, governmental
action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Trust Agreement.
SECTION
8.11. Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this Article
VIII
shall
become effective until the acceptance of appointment by the successor Trustee
in
accordance with the applicable requirements of Section 8.12.
(b) A
Trustee
may resign at any time by giving written notice thereof to the Depositor and,
in
the case of the Property Trustee and the Delaware Trustee, to the
Holders.
(c) Unless
an
Event of Default shall have occurred and be continuing, the Property Trustee
or
the Delaware Trustee, or both of them, may be removed (with or without cause)
at
any time by Act of the Holder of Common Securities. If an Event of Default
shall
have occurred and be continuing, the Property Trustee or the Delaware Trustee,
or both of them, may be removed (with or without cause) at such time by Act
of
the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, delivered to the removed Trustee (in its individual capacity and
on
behalf of the Trust). An Administrative Trustee may be removed (with or without
cause) only by Act of the Holder of the Common Securities at any
time.
(d) If
any
Trustee shall resign, be removed or become incapable of acting as Trustee,
or if
a vacancy shall occur in the office of any Trustee for any reason, at a time
when no Event of Default shall have occurred and be continuing, the Holder
of
the Common Securities, by Act of the Holder of the Common Securities, shall
promptly appoint a successor Trustee or Trustees, and such successor Trustee
and
the retiring Trustee shall comply with the applicable requirements of
Section
8.12.
If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when an Event of Default shall have occurred
and
be continuing, the Holders of the Preferred Securities, by Act of the Holders
of
a Majority in Liquidation Amount of the Preferred Securities, shall promptly
appoint a successor Property Trustee or Delaware Trustee, and such successor
Property Trustee or Delaware Trustee and the retiring Property Trustee or
Delaware Trustee shall comply with the applicable requirements of Section
8.12.
If an
Administrative Trustee shall resign, be removed or become incapable of acting
as
Administrative Trustee, at a time when an Event of Default shall have occurred
and be continuing, the Holder of the Common Securities by Act of the Holder
of
Common Securities shall promptly appoint a successor Administrative Trustee
and
such successor Administrative Trustee and the retiring Administrative Trustee
shall comply with the applicable requirements of Section
8.12.
If no
successor Trustee shall have been so appointed by the Holder of the Common
Securities or Holders of the Preferred Securities, as the case may be, and
accepted appointment in the manner required by Section
8.12
within
thirty (30) days after the giving of a notice of resignation by a Trustee,
the
removal of a Trustee, or a Trustee becoming incapable of acting as such Trustee,
any Holder who has been a Holder of Preferred Securities for at least six (6)
months (or, if the Preferred Securities have been Outstanding for less than
six
(6) months, the entire period of such lesser time) may, on behalf of himself
and
all others similarly situated, and any resigning Trustee may, in each case,
at
the expense of the Depositor, petition any court of competent jurisdiction
for
the appointment of a successor Trustee.
(e) The
Depositor shall give notice of each resignation and each removal of the Property
Trustee or the Delaware Trustee and each appointment of a successor Property
Trustee or Delaware Trustee to all Holders in the manner provided in
Section
10.8.
Each
notice shall include the name of the successor Property Trustee or Delaware
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
(f) Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event
any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holder of Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may
be filled by (i) the unanimous act of the remaining Administrative Trustees
if
there are at least two of them or (ii) otherwise by the Holder of the Common
Securities (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as
the
case may be, set forth in Sections
8.3
and
8.4).
(g) Upon
the
appointment of a successor Delaware Trustee, such successor Delaware Trustee
shall file a Certificate of Amendment to the Certificate of Trust in accordance
with section 3810 of the Delaware Statutory Trust Act.
SECTION
8.12. Acceptance
of Appointment by Successor.
(a) In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
shall execute and deliver to the Depositor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request
of
the Trust or any successor Trustee such retiring Trustee shall, upon payment
of
its charges, duly assign, transfer and deliver to such successor Trustee all
Trust Property, all proceeds thereof and money held by such retiring Trustee
hereunder with respect to the Trust Securities and the Trust.
(b) Upon
request of any such successor Trustee, the Trust (or the retiring Trustee if
requested by the Depositor) shall execute any and all instruments for more
fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the preceding paragraph.
(c) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article
VIII.
SECTION
8.13. Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Property Trustee or the Delaware Trustee may be merged
or
converted or with which it may be consolidated, or any Person resulting from
any
merger, conversion or consolidation to which such Trustee shall be a party,
or
any Person succeeding to all or substantially all the corporate trust business
of such Trustee, shall be the successor of such Trustee hereunder, without
the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided, that such Person shall be otherwise qualified and
eligible under this Article
VIII.
SECTION
8.14. Not
Responsible for Recitals, Issuance of Securities or
Representations.
The
recitals contained herein and in the Securities Certificates shall be taken
as
the statements of the Trust and the Depositor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the title to, or value or condition of, the property of the Trust or
any
part thereof, nor as to the validity or sufficiency of this Trust Agreement,
the
Notes or the Trust Securities. The Trustees shall not be accountable for the
use
or application by the Depositor of the proceeds of the Notes. It is expressly
understood and agreed by the parties hereto that insofar as any document,
agreement or certificate is executed on behalf of the Trust by any Trustee
(i)
such document, agreement or certificate is executed and delivered by such
Trustee, not in its individual capacity but solely as Trustee under this Trust
Agreement in the exercise of the powers and authority conferred and vested
in
it, (ii) each of the representations, undertakings and agreements made on the
part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements by any Trustee in its individual capacity
but is made and intended for the purpose of binding only the Trust and (iii)
under no circumstances shall any Trustee in its individual capacity be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Trust Agreement
or any other document, agreement or certificate.
SECTION
8.15. Property
Trustee May File Proofs of Claim.
(a) In
case
of any Bankruptcy Event (or event that with the passage of time would become
a
Bankruptcy Event) relative to the Trust or any other obligor upon the Trust
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions
on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Trust for the payment
of
any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or
otherwise:
(i) to
file
and prove a claim for the whole amount of any Distributions owing and unpaid
in
respect of the Trust Securities and to file such other papers or documents
as
may be necessary or advisable in order to have the claims of the Property
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel)
and
of the Holders allowed in such judicial proceeding; and
(ii) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such proceeding is hereby authorized by each Holder
to
make such payments to the Property Trustee and, in the event the Property
Trustee shall consent to the making of such payments directly to the Holders,
to
pay to the Property Trustee first any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee,
its
agents and counsel, and any other amounts due the Property Trustee.
(b) Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION
8.16. Reports
to the Property Trustee.
(a) The
Depositor and the Administrative Trustees shall deliver to the Property Trustee,
not later than forty-five (45) days after the end of each of the first three
fiscal quarters of the Depositor and not later than ninety (90) days after
the
end of each fiscal year of the Trust ending after the date of this Trust
Agreement, an Officers’ Certificate covering the preceding fiscal year, stating
whether or not to the knowledge of the signers thereof the Depositor and the
Trust are in default in the performance or observance of any of the terms,
provisions and conditions of this Trust Agreement (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Depositor
or
the Trust shall be in default, specifying all such defaults and the nature
and
status thereof of which they have knowledge.
(b) The
Depositor shall furnish (i) to the Property Trustee; (ii) Taberna Capital
Management, LLC (at 450 Park Avenue, 11th
Floor,
New York, New York 10022, Attention: Thomas Bogal or such other address as
designated by Taberna Capital Management, LLC); and (iii) any Owner of the
Preferred Securities reasonably identified to the Depositor and the Trust (which
identification may be made either by such Owner or by Taberna Capital
Management, LLC) a duly completed and executed certificate substantively and
substantially in the form attached hereto as Exhibit
F,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Depositor not later than
forty-five (45) days after the end of each of the first three fiscal quarters
of
each fiscal year of the Depositor and not later than ninety (90) days after
the
end of each fiscal year of the Depositor.
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 January 30, 2042
(the “Expiration
Date”),
and
the Trust Property shall be liquidated in accordance with Section 9.4.
SECTION
9.2. Early
Termination.
The
first
to occur of any of the following events is an “Early
Termination Event”,
upon
the occurrence of which the Trust shall be dissolved:
(a) the
occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor, in its capacity as the Holder of the Common
Securities, unless the Depositor shall have transferred the Common Securities
as
provided by Section
5.11,
in
which case this provision shall refer instead to any such successor Holder
of
the Common Securities;
(b) the
written direction to the Property Trustee from the Holder of the Common
Securities at any time to dissolve the Trust and, after satisfaction of any
liabilities of the Trust as required by applicable law and in accordance with
written instructions of the Administrative Trustees, to distribute the Notes
to
Holders in exchange for the Preferred Securities (which direction is optional
and wholly within the discretion of the Holder of the Common
Securities);
(c) the
redemption of all of the Preferred Securities in connection with the payment
at
maturity or redemption of all the Notes; and
(d) the
entry
of an order for dissolution of the Trust by a court of competent
jurisdiction.
SECTION
9.3. Termination.
(a) The
respective obligations and responsibilities of the Trustees and the Trust shall
terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Trust pursuant to Section 9.4,
or upon
the redemption of all of the Trust Securities pursuant to Section 4.2;
(b) the satisfaction of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust
or
the Holders.
(b) As
soon
as practicable thereafter, 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),
(b)
or
(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
9.4(d)
applies,
in order to effect the liquidation of the Trust and distribution of the Notes
to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date
for
such distribution (which shall not be more than forty-five (45) days prior
to
the Liquidation Date nor prior to the date on which notice of such liquidation
is given to the Holders) and establish such procedures as it shall deem
appropriate to effect the distribution of Notes in exchange for the Outstanding
Securities Certificates.
(c) Except
where Section
9.2(c)
or
9.4(d)
applies,
after the Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) certificates representing a Like Amount of
Notes will be issued to Holders of Securities Certificates, upon surrender
of
such Certificates to the exchange agent for exchange, (iii) the Depositor shall
use its best efforts to have the Notes listed on the New York Stock Exchange
or
on such other exchange, interdealer quotation system or self-regulatory
organization on which the Preferred Securities are then listed, if any, (iv)
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Notes bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will
be
made to Holders of Securities Certificates with respect to such Notes) and
(v)
all rights of Holders holding Trust Securities will cease, except the right
of
such Holders to receive Notes upon surrender of Securities
Certificates.
(d) Notwithstanding
the other provisions of this Section 9.4,
if
distribution of the Notes in the manner provided herein is determined by the
Property Trustee not to be permitted or practical, the Trust Property shall
be
liquidated, and the Trust shall be wound up by the 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 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 a 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 United States federal income tax purposes; and
(h) the
Depositor or its permitted transferee owns all of the common securities of
such
successor entity.
Notwithstanding
the foregoing, the Trust shall not, except with the consent of Holders of all
of
the Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other entity to consolidate,
amalgamate, merge with or into, or replace, the Trust if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the
Trust or the successor entity to be taxable as a corporation or classified
as
other than a grantor trust for United States federal income tax purposes or
cause the Notes to be treated as other than indebtedness of the Depositor for
United States federal income tax purposes.
ARTICLE
X
Miscellaneous
Provisions
SECTION
10.1. Limitation
of Rights of Holders.
Except
as
set forth in Section
9.2,
the
death, bankruptcy, termination, dissolution or incapacity of any Person having
an interest, beneficial or otherwise, in Trust Securities shall not operate
to
terminate this Trust Agreement, nor annul, dissolve or terminate the Trust
nor
entitle the legal representatives or heirs of such Person or any Holder for
such
Person, to claim an accounting, take any action or bring any proceeding in
any
court for a partition or winding up of the arrangements contemplated hereby,
nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION
10.2. Agreed
Tax Treatment of Trust and Trust Securities.
The
parties hereto and, by its acceptance or acquisition of a Trust Security or
a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Trust Security intend and agree, unless otherwise
required by law, to treat the Trust as a grantor trust for United States
federal, state and local tax purposes, and to treat the Trust Securities
(including all payments and proceeds with respect to such Trust Securities)
as
undivided beneficial ownership interests in the Trust Property (and payments
and
proceeds therefrom, respectively) for United States federal, state and local
tax
purposes and to treat the Notes as indebtedness of the Depositor for United
States federal, state and local tax purposes. The provisions of this Trust
Agreement shall be interpreted to further this intention and agreement of the
parties.
SECTION
10.3. Amendment.
(a) This
Trust Agreement may be amended from time to time by the Property Trustee, the
Administrative Trustees and the Holder of all the Common Securities, without
the
consent of any Holder of the Preferred Securities, (i) to cure any
ambiguity, correct or supplement any provision herein that may be defective
or
inconsistent with any other provision herein, or to make or amend any other
provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will neither be taxable as a corporation nor be classified as other than a
grantor trust for United States federal income tax purposes at all times that
any Trust Securities are Outstanding or to ensure that the Notes are treated
as
indebtedness of the Depositor for United States federal income tax purposes,
or
to ensure that the Trust will not be required to register as an “investment
company” under the Investment Company Act or (iii) to add to the covenants,
restrictions or obligations of the Depositor; provided,
that in
the case of clauses (i), (ii) or (iii), such action shall not adversely affect
in any material respect the interests of any Holder.
(b) Except
as
provided in Section
10.3(c),
any
provision of this Trust Agreement may be amended by the Property Trustee, the
Administrative Trustees and the Holder of all of the Common Securities and
with
(i) the consent of Holders of at least a Majority in Liquidation Amount of
the
Preferred Securities and (ii) receipt by the Trustees of an Opinion of Counsel
to the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not cause the Trust to be
taxable as a corporation or classified as other than a grantor trust or other
disregarded entity for United States federal income tax purposes or adversely
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 Depositor 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 or under the Indenture and their
consequences provided for in this Trust Agreement or Indenture; (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,”
in
this Section
10.3(c),
Sections
4.2,
4.3,
6.10
or
Article
IX
or
modify the definition of “Note
Event of Default”.
(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
or
other disregarded entity for United States federal income tax purposes or that
would cause the Notes to fail or cease to be treated as indebtedness of the
Depositor for United States federal income tax purposes or that would cause
the
Trust to fail or cease to qualify for the exemption from status (or from any
requirement to register) as an “investment company” under the Investment Company
Act.
(e) If
any
amendment to this Trust Agreement is made, the Administrative Trustees or the
Property Trustee shall promptly provide to the Depositor and the Note Trustee
a
copy of such amendment.
(f) No
Trustee shall be required to enter into any amendment to this Trust Agreement
that affects its own rights, duties or immunities under this Trust Agreement.
The Trustees shall be entitled to receive an Opinion of Counsel and an Officers’
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement and all conditions precedent herein provided for
relating to such action have been met.
(g) No
amendment or modification to this Trust Agreement that adversely affects in
any
material respect the rights, duties, liabilities, indemnities or immunities
of
the Delaware Trustee hereunder shall be permitted without the prior written
consent of the Delaware Trustee.
SECTION
10.4. Separability.
If
any
provision in this Trust Agreement or in the Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions shall not in any way be affected or impaired thereby,
and there shall be deemed substituted for the provision at issue a valid, legal
and enforceable provision as similar as possible to the provision at
issue.
SECTION
10.5. Governing
Law.
THIS
TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE
TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND
THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAWS PROVISIONS.
SECTION
10.6. Successors.
This
Trust Agreement shall be binding upon and shall inure to the benefit of any
successor to the Depositor, the Trust and any Trustee, including any successor
by operation of law. Except in connection with a transaction involving the
Depositor that is permitted under Article
VIII
of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor’s obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION
10.7. Headings.
The
Article and Section headings are for convenience only and shall not affect
the construction of this Trust Agreement
SECTION
10.8. Reports,
Notices and Demands.
(a) Any
report, notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon any
Holder or the Depositor may be given or served in writing delivered in person,
or by reputable, overnight courier, by telecopy or by deposit thereof,
first-class postage prepaid, in the United States mail, addressed, (a) in
the case of a Holder of Preferred Securities, to such Holder as such Holder’s
name and address may appear on the Securities Register; and (b) in the case
of the Holder of all the Common Securities or the Depositor, to Redwood Trust,
Inc., One Belvedere Place, Suite 300, Mill Valley, California 94941, Attention:
Martin S. Hughes, or to such other address as may be specified in a written
notice by the Holder of all the Common Securities or the Depositor, as the
case
may be, to the Property Trustee. Such report, notice, demand or other
communication to or upon a Holder or the Depositor shall be deemed to have
been
given when received in person, within one (1) Business Day following delivery
by
overnight courier, when telecopied with receipt confirmed, or within three
(3)
Business Days following delivery by mail, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be deemed
to
have been delivered on the date of such refusal or inability to
deliver.
(b) Any
notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Property
Trustee, the Delaware Trustee, the Administrative Trustees or the Trust shall
be
given in writing by deposit thereof, first-class postage prepaid, in the U.S.
mail, personal delivery or facsimile transmission, addressed to such Person
as
follows: (i) with respect to the Property Trustee to The Bank of New York
Trust Company, National Association, 601 Travis, 16th
Floor,
Houston, Texas 77002, Attention: Global Corporate Trust—Redwood Capital Trust I,
facsimile no. (713) 483-6001 (initially, all notices and correspondence shall
be
addressed to Mudassir Mohamed, telephone (713) 483-6029), (ii) with respect
to the Delaware Trustee, to The Bank of New York (Delaware), 100 White Clay
Center, Route 273, P.O. Box 6995, Newark, Delaware 19711, Attention: Corporate
Trust Administration—Redwood Capital Trust I, facsimile no. (302) 453-4400;
(iii) with respect to the Administrative Trustees, to them at the address
above for notices to the Depositor, marked “Attention: Administrative Trustees
of Redwood Capital Trust I”, and (iv) with respect to the Trust, to its
principal executive office specified in Section
2.2,
with a
copy to the Property Trustee. Such notice, demand or other communication to
or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of
the
writing by the Trust, the Property Trustee or the Administrative
Trustees.
SECTION
10.9. Agreement
Not to Petition.
Each
of
the Trustees and the Depositor agree for the benefit of the Holders that, until
at least one year and one day after the Trust has been terminated in accordance
with Article
IX,
they
shall not file, or join in the filing of, a petition against the Trust under
any
Bankruptcy Law or otherwise join in the commencement of any proceeding against
the Trust under any Bankruptcy Law. If the Depositor takes action in violation
of this Section 10.9,
the
Property Trustee agrees, for the benefit of Holders, that at the expense of
the
Depositor, it shall file an answer with the applicable bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Trust may assert.
SECTION
10.10. Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Trust Agreement as of the day and year first above written.
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Redwood
Trust, Inc.,
as
Depositor
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By: |
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Name: Martin
S. Hughes |
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Title:
Chief Financial Officer, Treasurer,
Vice
President and Secretary
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The
Bank of New York Trust Company,
National
Association, as
Property Trustee
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By: |
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Name:
Maria D. Calzado |
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Title:
Vice President
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The
Bank of New York (Delaware),
as
Delaware Trustee
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By: |
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Name:
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Title:
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By: |
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Name: Martin
S. Hughes |
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Title: Administrative
Trustee
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By: |
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Name: Harold
F. Zagunis |
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Title: Administrative
Trustee
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By: |
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Name: Brett
Nicholas |
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Title: Administrative
Trustee
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Exhibit
A
CERTIFICATE
OF TRUST
OF
REDWOOD
CAPITAL TRUST I
This
Certificate of Trust of Redwood Capital Trust I (the
“Trust”)
is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. §3801 et seq.) (the “Act”).
1. Name.
The
name of the statutory trust formed hereby is: Redwood Capital Trust
I.
2. Delaware
Trustee.
The
name and business address of the Trust meeting the requirements of Section
3807
of the Act are The Bank of New York (Delaware), 100 White Clay Center, Route
273, P.O. Box 6995, Newark, Delaware 19711.
3. Effective
Date.
This
Certificate of Trust shall be effective upon its filing with the Secretary
of
State of the State of Delaware.
IN
WITNESS WHEREOF, the undersigned trustee of the Trust has executed this
Certificate of Trust in accordance with of the Act.
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The
Bank of New
York (Delaware),
not in its individual capacity, but solely as Delaware
Trustee |
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By: |
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Name: |
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Title: |
Exhibit
B
[FORM
OF COMMON SECURITIES CERTIFICATE]
THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT
IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT
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Certificate
Number
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Number
of Common Securities
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C-1
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3,100
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Certificate
Evidencing Common Securities
of
Redwood
Capital Trust I
Common
Securities
(liquidation
amount $1,000 per Common Security)
Redwood
Capital Trust I, a statutory trust created under the laws of the State of
Delaware (the “Trust”),
hereby
certifies that Redwood Trust, Inc., a Maryland corporation (the “Holder”)
is the
registered owner of Three Thousand One Hundred (3,100) common securities
of the
Trust representing undivided common beneficial interests in the assets of
the
Trust and designated the Redwood Capital Trust I Common Securities (liquidation
amount $1,000 per Common Security) (the “Common
Securities”).
Except
in accordance with Section 5.11
of the
Trust Agreement (as defined below), the Common Securities are not transferable
and, to the fullest extent permitted by law, any attempted transfer hereof
other
than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject
to
the terms and provisions of, the Amended and Restated Trust Agreement of
the
Trust, dated as of December 12, 2006 as the same may be amended from time
to
time (the “Trust
Agreement”),
among
the Holder, as Depositor, The Bank of New York Trust Company, National
Association, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, the Administrative Trustees named therein and the Holders, from
time to
time, of the Trust Securities. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust
at its
principal place of business or registered office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and
is
entitled to the benefits thereunder.
This
Common Securities Certificate shall be governed by and construed in accordance
with the laws of the State of Delaware.
Terms
used but not defined herein have the meanings set forth in the Trust
Agreement.
In
Witness Whereof, one of the Administrative Trustees of the Trust has executed
on
behalf of the Trust this certificate this __ day of _______________,
200__.
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Redwood
Capital
Trust I |
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By: |
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Name: |
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Title: Administrative
Trustee |
Exhibit
C
[FORM
OF PREFERRED SECURITIES CERTIFICATE]
“[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS
PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST
AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER
OF
THIS PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF
DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS
THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO
REDWOOD CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR
PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE
PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES
ACT”),
AND
SUCH PREFERRED SECURITIES OR ANY INTEREST THEREIN MAY NOT BE OFFERED, SOLD
OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY
NOTIFIED THAT THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A UNDER THE SECURITIES ACT.
THE
HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST OR THE
DEPOSITOR, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND A
“QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(A)(51) OF THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED), (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR
(V)
PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER 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.
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 PREFERRED 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 UNLESS SUCH ACQUIROR OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-28, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS ACQUISITION AND HOLDING OF THIS PREFERRED
SECURITY, OR ANY INTEREST HEREIN, ARE NOT PROHIBITED BY SECTION 406 OF ERISA
OR
SECTION 2975 OF THE CODE WITH RESPECT TO SUCH ACQUISITION OR HOLDING. 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 EITHER
(i)
IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA,
OR OTHER PLAN TO WHICH TITLE 1 OF ERISA OR SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE
BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE OR (ii) SUCH ACQUISITION OR HOLDING WILL NOT RESULT IN
A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH FULL EXEMPTION RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY
OR ADMINISTRATIVE EXEMPTION.
|
Certificate
Number: G-1
|
Up
to $100,000,000 Aggregate Liquidation
Amount
Preferred
Securities
|
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CUSIP
NO.
[REG
S: U75723 AA 1
ISIN
NUMBER: USU75723AA17
RULE
144A: 75777G AA 5
ISIN
NUMBER: US75777GAA58]
Certificate
Evidencing Preferred Securities
of
Redwood
Capital Trust I
Preferred
Securities
(liquidation
amount $1,000 per Preferred Security)
Redwood
Capital Trust I, a statutory trust created under the laws of the State of
Delaware (the “Trust”),
hereby
certifies that Cede & Co., as nominee on behalf of The Depositary Trust
Company (the “Holder”)
is the
registered owner of up to 100,000 Preferred Securities or such other number
of
Preferred Securities represented hereby as may be set forth in the records
of
the Securities Registrar hereinafter referred to in accordance with the Trust
Agreement (as defined below) of the Trust representing an undivided preferred
beneficial interest in the assets of the Trust and designated the Redwood
Capital Trust I Preferred
Securities (liquidation amount $1,000 per Preferred Security) (the “Preferred
Securities”).
Subject to the terms of the Trust Agreement, 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. 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 December 12, 2006, as
the
same may be amended from time to time (the “Trust
Agreement”),
among
Redwood Trust, Inc., as Depositor, The Bank of New York Trust Company, National
Association, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, the Administrative Trustees named therein and the Holders, from
time to
time, of the Trust Securities. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Property
Trustee at its Corporate Trust Office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and
is
entitled to the benefits thereunder.
This
Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All
capitalized terms used but not defined in this Preferred Securities Certificate
are used with the meanings specified in the Trust Agreement, including the
Schedules and Exhibits thereto.
In
Witness Whereof,
one of
the Administrative Trustees of the Trust has executed on behalf of the Trust
this certificate this __ day of December, 2006.
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Redwood
Capital
Trust
I |
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By: |
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Name: |
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Administrative
Trustee |
This
is
one of the Preferred Securities referred to in the within-mentioned Trust
Agreement.
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Dated:
December 12, 2006
|
The
Bank of New York Trust Company,
National
Association,
not in its individual capacity, but solely as Property
Trustee
|
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By: |
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Authorized
signatory |
[FORM
OF REVERSE OF SECURITY]
The
Trust
shall distribute Distributions from December 12, 2006, 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, 2007, at a variable rate equal to LIBOR plus
2.25% per annum of the Liquidation Amount of the Preferred Securities
represented by this Preferred Securities Certificate, together with any
Additional Interest Amounts, in respect to such period.
Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.
Distributions
on the Securities must be paid on the dates payable to the extent that the
Trust
has funds available for the payment of such Distributions in the Payment Account
of the Trust. The Trust’s funds available for Distribution to the Holders of the
Preferred Securities will be limited to payments received from the Depositor
on
the Note.
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 capital stock, except only to the extent
necessary to maintain its status as a real estate investment trust under the
Code, provided such distributions to maintain its status as a real estate
investment trust under the Code may not be made in any event if there has
occurred (x) an Event of Default described in clauses (a), (b), (e) or (f)
of
Section
5.1
of the
Indenture or (y) any Event of Default with respect to which acceleration of
principal has been triggered pursuant to Section
5.2
of the
Indenture, or (z) an Event of Default triggered by a breach of Section
10.9
of the
Indenture (ii) vote in favor of or permit or otherwise allow any of its
Significant Subsidiaries 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 Significant 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) if such proceeds are payable to
any
third party which is not the Depositor or an affiliate of the Depositor, 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 Preferred Securities (other than
with
respect to clauses (i) and (iii) above, (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Depositor or any Significant
Subsidiary in connection with (1) any employment contract, benefit plan or
other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase plan or (3) the issuance of capital stock of the Depositor or
of
such Significant Subsidiary (or securities convertible into or exercisable
for
such capital stock) as consideration in an acquisition transaction entered
into
prior to the Event of Default, (b) as a result of an exchange or conversion
of
any class or series of the Depositor’s capital stock (or any capital stock of a
Significant Subsidiary) for any class or series of the Depositor’s capital stock
(or in the case of a Significant Subsidiary, any class or series of such
Significant Subsidiary’s capital stock) or any class or series of the
Depositor’s indebtedness for any class or series of the Depositor’s capital
stock (or in the case of indebtedness of a Significant Subsidiary, or any class
or series of such Significant Subsidiary’s indebtedness for any class or series
of such Significant Subsidiary’s capital stock), (c) the purchase of fractional
interests in shares of the Depositor’s capital stock (or the capital stock of a
Significant Subsidiary) pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan (as defined in
the
Indenture), the issuance of rights, stock or other property under any Rights
Plan, or the redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks pari
passu
with or
junior to such stock and any cash payments in lieu of fractional shares issued
in connection therewith).
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, 2012 in whole or in
part from time to time at the Optional Note Redemption Price of the principal
amount thereof or the redeemed portion thereof, as applicable, together, in
the
case of any such redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption. The Notes may also
be
redeemed by the Depositor, at its option, at any time, in whole but not in
part,
upon the occurrence of an Investment Company Event or a Tax Event at the Special
Note Redemption Price; provided,
that
such Investment Company Event or a Tax Event is continuing on the Redemption
Date.
The
Trust
Securities redeemed on each Redemption Date shall be redeemed at the Redemption
Price with the proceeds from the contemporaneous redemption or payment at
maturity of Notes. Redemptions of the Trust Securities (or portion thereof)
shall be made and the Redemption Price shall be payable on each Redemption
Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made by
wire
transfer at such place and to such account at a banking institution in the
United States as may be designated in writing at least ten (10) Business Days
prior to the date for payment by the registered holder of this Certificate
unless proper written transfer instructions have not been received by the
relevant record date, in which case such payments shall be made by check mailed
to the address of such Person as such address shall appear in the Security
Register. If
any
Preferred Securities are held by a Depositary, such Distributions shall be
made
to the Depositary in immediately available funds.
The
indebtedness evidenced by the Notes is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of
all
Senior Debt (as defined in the Indenture), and this Security is issued subject
to the provisions of the Indenture with respect thereto.
ASSIGNMENT
For
Value
Received,
the
undersigned assigns and transfers this Preferred Securities Certificate
to:
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(Insert
assignee’s social security or tax identification
number)
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(Insert
address and zip code of assignee)
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and
irrevocably appoints
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agent
to
transfer this Preferred Securities Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
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Date:
_______________________
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Signature:
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________________________________________________________________
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(Sign
exactly as your name appears on the other side of this Preferred
Securities Certificate)
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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.
[Regulation
S Schedule A
The
initial amount of Preferred Securities held hereby is [Amount
Sold Pursuant to Reg S on Closing Date].
The
amount of any Preferred Securities issued or canceled in exchange for a portion
of portions hereof, any portion or portions hereof exchanged for a definitive
certificated Preferred Securities Certificate or other global Preferred
Securities Certificate and any portion of portions of a definitive certificated
Preferred Securities Certificate or other global Preferred Securities
Certificate exchanged for a portion or portions hereof:
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Date
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Amount
of Preferred Securities Issued, Canceled or
Exchanged
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Remaining
Amount of this Regulation S Global Preferred Securities
Certificate
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Notation
Made
by or on Behalf of
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[Closing
Date]
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[Amount
Sold Pursuant to Reg S on Closing Date]
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[Rule
144A Schedule A
The
initial amount of Preferred Securities held hereby is [Amount
Sold Pursuant to Rule 144A on Closing Date].
The
amount of any Preferred Securities issued or canceled in exchange for a portion
of portions hereof, any portion or portions hereof exchanged for a definitive
certificated Preferred Securities Certificate or other global Preferred
Securities Certificate and any portion of portions of a definitive certificated
Preferred Securities Certificate or other global Preferred Securities
Certificate exchanged for a portion or portions hereof:
|
Date
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Amount
of Preferred Securities Issued, Canceled or
Exchanged
|
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Remaining
Amount of this Rule 144A Global Preferred Securities
Certificate
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Notation
Made
by or on Behalf of
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[Closing
Date]
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[Amount
Sold Pursuant to Rule 144A on Closing Date]
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Exhibit
D
Junior
Subordinated Indenture
Exhibit
E
Form
of Transferee Certificate
to
be Executed by Transferees
__________,
[ ]
The
Bank
of New York Trust Company, National
Association
601
Travis, 16th
Floor
Houston,
Texas 77002
Attention:
Worldwide Securities Services — Redwood Capital Trust I
Redwood
Trust, Inc.
Redwood
Capital Trust I
One
Belvedere Place
Suite
300
Mill
Valley, California 94941
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Re:
|
Purchase
of $____________ stated liquidation amount of Preferred Securities
(the
“Preferred Securities”)
of Redwood Capital Trust I
|
Ladies
and Gentlemen:
In
connection with our purchase of the Preferred Securities we confirm
that:
1. We
understand that the Preferred Securities (the “Preferred Securities”) of Redwood
Capital Trust I (the “Trust”) and the Junior Subordinated Notes due 2037 of
Redwood Trust, Inc. (the “Company”) executed in connection therewith (the
“Subordinated Notes”) (the entire amount of the Trust’s outstanding Preferred
Securities and the Subordinated Notes together being referred to herein as
the
“Offered Securities”), have not been registered under the Securities Act of
1933, as amended (the “Securities Act”), and may not be offered or sold except
as permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing the Offered Securities
that,
if we decide to offer, sell or otherwise transfer any such Offered Securities,
(i) such offer, sale or transfer will be made only (a) to the Trust, (b) to
a
person we reasonably believe is a “qualified purchaser” (a “QP”) (as defined in
Section 2(a)(51) of the Investment Company Act of 1940, as amended) and in
compliance with the Securities Act. We understand that the certificates for
any
Offered Security that we receive will bear a legend substantially to the effect
of the foregoing.
2. We
are a
“qualified purchaser” within the meaning of section 2(a)(51) of the Investment
Company Act of 1940, as amended, and are purchasing for our own account or
for
the account of such a “qualified purchaser,” and we have such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of our investment in the Offered Securities, and we and any
account for which we are acting are each able to bear the economic risks of
our
or its investment.
3. We
are
acquiring the Offered Securities purchased by us for our own account (or for
one
or more accounts as to each of which we exercise sole investment discretion
and
have authority to make, and do make, the statements contained in this letter)
and not with a view to any distribution of the Offered Securities, subject,
nevertheless, to the understanding that the disposition of our property will
at
all times be and remain within our control.
4. In
the
event that we purchase any Preferred Securities or any Subordinated Notes,
we
will acquire such Preferred Securities having an aggregate stated liquidation
amount of not less than $100,000 or such Subordinated Notes having an aggregate
principal amount not less than $100,000, for our own account and for each
separate account for which we are acting.
5. We
acknowledge that we are not a fiduciary of (i) an employee benefit, individual
retirement account or other plan or arrangement subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) (each
a “Plan”); or (ii) an entity whose underlying assets include “plan assets” by
reason of any Plan’s investment in the entity, and are not purchasing any of the
Offered Securities on behalf of or with “plan assets” by reason of any Plan’s
investment in the entity.
6. We
acknowledge that the Trust and the Company and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, warranties
and
agreements and agree that if any of the acknowledgments, representations,
warranties and agreements deemed to have been made by our purchase of any of
the
Offered Securities are no longer accurate, we shall promptly notify the Company.
If we are acquiring any Offered Securities as a fiduciary or agent for one
or
more investor accounts, we represent that we have sole discretion with respect
to each such investor account and that we have full power to make the foregoing
acknowledgments, representations and agreement on behalf of each such investor
account.
(Name
of
Purchaser)
By:______________________________________
Date:
____________________________________
Upon
transfer, the Preferred Securities (having a stated liquidation amount of
$_____________) would be registered in the name of the new beneficial owner
as
follows.
Name:
Address:____________________________
Taxpayer
ID Number: _________________
Officer’s
Financial Certificate
The
undersigned, the [Chairman/Vice Chairman/Chief Executive Officer/President/Vice
President/Chief Financial Officer/Treasurer/Assistant Treasurer], hereby
certifies pursuant to Section 8.16(b) of the Amended and Restated Trust
Agreement, dated as of December 12, 2006 (the “Trust Agreement”), among Redwood
Trust, Inc. (the “Company”), The Bank of New York Trust Company, National
Association, as property trustee, The Bank of New York (Delaware), as Delaware
trustee, and the administrative trustees named therein, that, as of [date],
[20__], the Company had the following ratios and balances:
As
of
[Quarterly/Annual Financial Date], 20__
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Senior
secured indebtedness for borrowed money (“Debt”)
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$_____
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Senior
unsecured Debt
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$_____
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Subordinated
Debt
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$_____
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Total
Debt
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$
_____
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Ratio
of (x) senior secured and unsecured Debt to (y) total Debt
|
_____%
|
*
A table
describing the officer’s financial certificate calculation procedures is
provided on page 3
[FOR
FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of
cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended _______, 20___].]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter ended [date], 20__.]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the date, and for the [quarter]
[annual]
period
ended [date],
20__,
and such financial statements have been prepared in accordance with GAAP
consistently applied throughout the period involved (expect as otherwise noted
therein).
There
has
been no monetary default with respect to any indebtedness owed by the Company
and/or its subsidiaries (other than those defaults cured within 30 days of
the
occurrence of the same).
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Financial
Certificate as of this _____ day of _____________, 20__.
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Redwood
Trust,
Inc. |
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| Date: |
By: |
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Name: |
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Title: |
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Redwood
Trust, Inc.
One
Belvedere Place
Suite
300
Mill
Valley, California 94941
Telephone:
(415) 389-7373
|
Schedule
A
DETERMINATION
OF LIBOR
With
respect to the Trust Securities, the London interbank offered rate
(“LIBOR”)
shall
be determined by the Calculation Agent in accordance with the following
provisions (in each case rounded to the nearest .000001%):
(1) On
the
second LIBOR Business Day (as defined below) prior to a Distribution Date
(except with respect to the first interest payment period such date shall be
December 8, 2006) (each
such day, a “LIBOR
Determination Date”),
LIBOR
for any given security shall for the following interest payment period equal
the
rate (expressed as a percentage per annum) for U.S. dollar deposits in Europe,
for a three (3) month period, that appears on Dow Jones Telerate (as defined
in
the International Swaps and Derivatives Association, Inc. 2000 Interest Rate
and
Currency Exchange Definitions) Page 3750, or such other page as may replace
such
Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date,
as
reported by Bloomberg Financial Market Commodities News or any successor
service. If such rate is superseded on Telerate Page 3750 by a corrected rate
before 12:00 noon (London time) on such LIBOR Determination Date, the corrected
rate as so substituted will be LIBOR for such LIBOR Determination
Date.
(2) If
on any
LIBOR Determination Date such rate does not appear on Dow Jones 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 (expressed as
a
percentage per annum) of the Reference Banks (as defined below) to leading
banks
in the London interbank market for U.S. dollar deposits in Europe, for a three
(3) month period, for an amount determined by the Calculation Agent (but not
less than U.S. $1,000,000) 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 (expressed as a
percentage per annum) that two (2) leading banks in The City of New York
selected by the Calculation Agent are quoting on the relevant LIBOR
Determination Date for U.S. dollar deposits in Europe, for a three (3) month
period, for an amount determined by the Calculation Agent (but not less than
U.S. $1,000,000); 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 (a) on which commercial banks are open for business (including dealings
in
foreign exchange and foreign currency deposits) in London and (b) is not a
Saturday, Sunday or other day on which commercial banking institutions in New
York, New York or Wilmington, Delaware are authorized or obligated by law or
executive order to be closed.