28. IT S A CONTACT SPORT: CORPORATE TRUST CONCERNS THAT BOND ATTORNEYS NEED TO ANTICIPATE. Wells Fargo Bank, N.A. - Minneapolis, Minnesota

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1 28. IT S A CONTACT SPORT: CORPORATE TRUST CONCERNS THAT BOND ATTORNEYS NEED TO ANTICIPATE Chair: Bryant D. Barber Lewis and Roca LLP - Phoenix, Arizona Panelists: Virginia A. Housum Patrick J. McLaughlin David J. Fernandez Wells Fargo Bank, N.A. - Minneapolis, Minnesota Dorsey & Whitney, LLP - Minneapolis, Minnesota Carter Ledyard & Milburn LLP - New York, New York The purpose of this panel is to provide participants with a greater sensitivity to certain significant issues that confront trustees in the administration of indentures and the impact of the attendant consequences on issuers, bond attorneys and investors. Discussion will include the approaches trustees take to situations involving disputes over document interpretation and a close examination of the role of trustees in the administration of defaults, with an emphasis on how recent trends have affected trustees and their interaction with bondholders. This panel will focus on pragmatic practice suggestions and important drafting points

2 DISCUSSION OUTLINE 1. Points of Emphasis (Take Aways): The points of emphasis for this Panel are: 1.1. Each material provision of an indenture must be viewed from the post-default perspective of bondholders trying to maximize their net recovery Bond attorneys can reduce their exposure (claims and reputational damage) by making certain that bondholders (or the Trustee acting on their behalf) have a clear legal and factual basis to enforce the underlying documents Bond documents must be fundamentally solid commercial loan documents insofar as both of these document types must anticipate claims and defenses under applicable law (e.g., claims based on state contract or commercial law and federal and state securities laws) The draftsperson has to think through the mechanical steps and the timing of any instruction to the Trustee that pertains to each material servicing function (e.g., investing trust funds, collecting revenues, monitoring the obligor, responding to incipient defaults, and enforcing remedies). Incomplete or ambiguous instructions may provide a basis for complex and protracted litigation The parties to an indenture and the related financing documents are constantly engaged in managing and reallocating risk and expense. Careful drafting that anticipates pragmatic solutions is essential to minimizing bad behavior. 2. Defensive Drafting 2.1. Transaction Counsel Must Anticipate Defaults A. Investors Expect A (Relatively) Clear Path to Sources of Payment and Security B. Strength of the Credit: No Defense For Poor Drafting C. Lack of Clarity in Financing Documents is Fuel for Protracted Litigation D. Document Provisions Pertaining to the Administration of Remedies are Ripe with Exposure 2.2. Understand the Context: Risk Identification 2.3. Structure with a Purpose: Risk Allocation 2.4. Embrace the Worst Case Scenario: Risk Management 3. Context: The Role of the Trustee and Common Misconceptions 3.1. Why a Trustee? 3.2. Pre-Default Duties A. Nature and Source Contractual in Nature

3 Express Duties; no implied duties Depends, in part, on Specific Terms of Financing Documents Nondiscretionary, administrative (ministerial) B. Typical Pre-default Duties 3.3. Common Misconceptions A. Discretionary decision-making B. Trustee functioning as Lender C. Power to Extend Waivers D. Duty to investigate, inquire or engage in affirmative monitoring E. Investment Management F. Disclosure Compliance 3.4. Post Event of Default Duties A. Heightened Standard of Care: Prudent Person / Prudent Corporate Trustee B. Fiduciary in nature C. Charged to exercise the rights and powers vested in it by the indenture (or bond resolution) D. Traditional: acceleration, collection actions, foreclosure and liquidation of collateral E. Possible alternative undertakings: depends on circumstances and terms of the applicable documents work-out, forbearance agreements, restructuring, mandamus or other injunctive remedy, receivership F. Control issues: controlling party (bondholders vs. credit enhancer), majority bondholder direction, advocating minority interests G. Non-impairment clauses or other restrictions H. Use of advisors and experts I. Recovery of costs and expenses 4. Structuring: Document Hot Buttons and Drafting Suggestions 4.1. Enhanced language to address financial decline of Insurers or Credit Enhancers 4.2. Define material and adverse effect on Bondholders 4.3. Improving access to information pre and post default

4 4.4. Alternative terms concerning removal, replacement of Trustee 4.5. Enhanced terms concerning covenant (non-payment) breaches and retention of consultants 4.6. Enhanced definition of defaults/events of defaults 4.7. Addition of the concept of Trustee Default and Trustee Cure Period, especially in agreements such as forward purchase or forward delivery agreements 4.8. Trustee discretion or responsibility over investment selection (even if exculpated from loss) of funds held in trust accounts (and related Eligible Investments or Permitted Investments issues). Example: Funds held in the [ ] Account shall be invested in Eligible Investments selected by the Trustee or Funds held in the [ ] Account shall be invested in Eligible Investments selected by the Borrower or, if the Borrower shall fail for three (3) consecutive Business Days to so instruct the Trustee, by the Trustee 4.9. Stated or implied responsibility for UCC perfection. Example: The Trustee shall take such action as may be necessary to maintain the perfection of the security interest granted hereunder or The Trustee shall prepare and file UCC continuations statements, and shall take such other actions, as may be necessary to maintain the perfection and priority of the security interests granted hereunder Responsibility to affirmatively review or evaluate construction fund requisitions (or supporting materials) or to exercise discretion regarding the same. Example: Terms allowing withdrawal upon requisition approved by the Trustee or in form and content acceptable to the Trustee or upon such requisition and supporting materials as the Trustee mat require or calling for surveys, title reports, etc to be acceptable to the Trustee or as it may require Responsibility to affirmatively review or evaluate borrower financial reports, management reports, rebate certificates or continuing disclosure reports. Example: Terms stating or implying review or approval by the Trustee, or calling for the same to be in form and content acceptable to the Trustee; or failing to state affirmatively that the Trustee is not under a responsibility to review or examine the content Terms treating the Trustee as a lender exercising business discretion (pre-default) in the administration of a loan (unless accompanied by a clear objective standard to apply): Example: Covenants prohibiting or restricting actions unless consented to by the Trustee or allowing actions upon such terms as the Trustee may approve or calling for required opinions or similar deliverables to be as may be required by the Trustee

5 4.13. Any deviation from the commonly accepted pre-default (strictly contractual) and postdefault ("prudent person ) Trustee standard of care. Example: The Trustee shall take whatever action is necessary to protect the interests of Noteholders. Instead, should be: Except upon the occurrence and during continuance of an Event of Default the Trustee shall have only such duties as are expressly set forth herein Upon the occurrence and during continuance of an Event of Default, the Trustee exercise such of the rights and powers vested in it by the indenture, using the same degree of care and skill in their exercise, as a prudent person would under the circumstance in the conduct of his or her own affairs Lack of appropriate indemnification, expense recovery or charging lien. Indenture trustee should be provided complete indemnification from any expense, loss and liability (including attorneys fees and expenses) incurred in the acceptance or performance of its duties or administration of the trusts which it has been charged to administer (often qualified to exclude losses caused by its own [gross] negligence or willful misconduct); recovery of amounts owing to the Trustee should be included as a secured obligation in all granting language; and Trustee should be granted a charging lien ahead of bond holders. [See for example NABL Form Trust Indenture, Section 8.05.] Lack or absence of standard Trustee protections: Should be an express recitation of the standard, commonly accepted indenture trustee immunities and protections, such as: Trustee ability to rely on documents it receives in good faith without investigation; ability to receive and rely on advice of counsel; not liable for errors of judgment unless negligent in ascertaining facts; not obliged to take action unless indemnified to its satisfaction against expense and liability; etc. [See for example NABL Form Trust Indenture, Sections ] Terms calling for material adverse affect on bondholders to be determined by the Trustee. Examples: Indenture amendment section permitting amendments meeting stated criteria, followed by something like: Notwithstanding any term herein to the contrary, the Trustee shall not enter into any amendment having a material adverse effect on bondholders Terms improperly imposing any responsibility for tax-exempt qualification on the Trustee, expressly or impliedly. Example: Notwithstanding any term herein to the contrary, the Trustee will not take any action that would cause interest on the bonds to fail to be exempt from federal taxation. Or similar terms, in different contexts. 5. Embracing the Worst Case: Default Administration Guiding Principles A. Process is Paramount B. Timely and Reasonably Detailed Communication is Essential

6 C. The Privileges and Immunities Conferred on the Trustee in the Trust Indenture are Not Self Executing D. Strategically Managing the Record will Provide the Trustee Advantages over the Course of the Case E. Good Case Management Demands Strong Budget Management 5.2. Assessment of Rights and Remedies of the Trustee and the Bondholders Upon Event of Default A. Duties and Obligations of the Trustee B. Rights of the Trustee to Access Trust Funds and Future Revenues to Pay Costs and Expenses C. Rights of the Trustee to Indemnification and Exoneration D. Rights of the Bondholders to Direct Proceedings E. Rights of Third Parties to Participate in or Control the Direction of Proceedings 5.3. Organize Administration Infrastructure A. Common Interest Agreements B. Bondholder Direction and Indemnity Agreements C. Bondholder Communications D. Financial Advisory Services E. Addressing Potential Conflicts of Interest and Positional Conflicts 5.4. Assessment of Surrounding Facts A. Default Recognition: Understanding the Cause and Extent of the Default B. Deciphering Financial Reporting C. Determine the Physical Status of the Project D. Determine the Identity of the Parties and Their Relationships to the Borrower and the Project E. Determine the Status of Performance Under Contract Rights which Benefit Either the Borrower or the Project F. Determine the Amount and Nature of Pending or Contingent Claims Against the Borrower and the Project 5.5. Assessment of Terms and Conditions in Documents A. Outline of Flow of Funds

7 B. Review Scope of Covenants and Reporting Requirements C. Survey of Documents Purporting to Grant or Perfect Liens and Security Interests D. Conditions to Noticing and Acting Upon Events of Default E. Identify Intercreditor Concerns F. Tax Compliance 5.6. Conduct Substantive Analysis of Workout Potential A. Determine Need for Expedited Injunctive Relief B. Statutes of Limitations, Statutes of Repose and Time Bars to Enforcement C. Claims against Guarantors and Sureties D. Survey Assets and Cashflows Potentially Available for Use in the Workout E. Survey Management and Control Devices Available During the Workout F. Obtain Estimates of Workout Costs and Benefit G. Assess Risk of Lender Liability H. Determine the Ramifications of a Voluntary or Involuntary Filing Under the Bankruptcy Code During the Course of the Workout I. Making a Reasonable Estimate of the Results of a Successful Workout 5.7. Formulation of a Workout Plan A. Gaining Control of the Workout B. Define the Limits of the Borrower s Ability to Manage the Workout C. Traditional Commercial Law Courses of Action D. State Law Constraints E. Tax Planning F. Timetables for Performance 5.8. Implementation of the Workout Plan A. Creation of Priorities Among Creditors B. Management and Operating Controls C. Collateral D. Documentation

8 5.9. Conclusion of Workout Arrangements A. Settlement Agreements B. Trust Instructions and Bankruptcy Orders C. Document Closings 6. Recent Litigation of Interest