Exhibit 3.6
AMENDMENT NO. 3
TO THE
AMENDED AND RESTATED TRUST AGREEMENT
OF
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY
This AMENDMENT NO. 3 dated as of June 13, 2002 ("Amendment No. 3") to
the Trust Agreement (as defined below) of Charter Municipal Mortgage Acceptance
Company, a Delaware business trust (the "Trust"), is entered into, by and among
the undersigned Trustees. Capitalized terms used but not defined shall have the
meaning assigned to such terms in Article 2 of the Trust Agreement.
W I T N E S S E T H :
WHEREAS, a trust was created as a business trust in accordance with
applicable provisions of the Trust Act by entering into a Trust Agreement, dated
as of August 12, 1996, as amended by Amendment No. 1 dated as of April 30, 1997
and as further amended and restated by an Amended and Restated Trust Agreement
dated September 30, 1997 ("Amended and Restated Trust Agreement"), as amended by
Amendment No. 1 dated as of May 8, 2000 ("Amendment No. 1") and as further
amended by Amendment No. 2 dated as of December 11, 2000 ("Amendment No. 2" and
collectively, with Amendment No.1 and the Amended and Restated Trust Agreement,
the "Trust Agreement"), and by the filing with the Secretary of State of the
State of Delaware of a Certificate of Trust on August 12, 1996, as amended;
Creation of Series A Convertible Community Reinvestment Act Preferred Shares
WHEREAS, the Board of Trustees adopted resolutions to amend the Trust
Agreement as provided herein to create a class of preferred shares called the
Series A Convertible Community Reinvestment Act Preferred Shares (the "Series A
Convertible CRA Shares") and to fix the preferences, conversion and other
rights, voting powers, restrictions (including transfer restrictions),
limitations as to distributions, qualifications or terms or conditions of
redemption of such Series A Convertible CRA Shares;
WHEREAS, pursuant to Section 10.4 of the Trust Agreement, the Board of
Trustees has the power to amend Article 6 of the Trust Agreement without the
consent of the Trust's Shareholders or the registered trustee to reflect any
rights, preferences or privileges granted in connection with the issuance of the
Series A Convertible CRA Shares;
Increase in Number of Authorized Shares
WHEREAS, the Board of Trustees adopted resolutions to recommend, and did
recommend to the Shareholders of the Trust, that the Trust Agreement be amended
to increase the number of authorized shares from 50,000,000 to 100,000,000; and
WHEREAS, a majority of the Shareholders of the Trust entitled to vote,
voted affirmatively to amend the Trust Agreement to increase the number of
authorized shares of the Trust from 50,000,000 to 100,000,000 at the Trust's
annual meeting of Shareholders on June 11, 2002.
NOW, THEREFORE, the Trust Agreement is hereby amended as follows:
1. Effective as of June 13, 2002, a Section 6.8 of the Trust Agreement
is hereby added to the Trust Agreement as follows:
6.8 Certificate of Designation. The Series A Convertible
Community Reinvestment Act Preferred Shares of the Trust, shall
have (i) the designation, powers, preferences, (ii) the relative,
participating, optional or other special rights, and (iii) the
qualifications, limitations or restrictions, set forth in the
Certificate of Designation, attached hereto as Appendix B, which
terms are incorporated by reference in, and made a part of, this
Trust Agreement as if specifically set forth herein.
2. Effective as of June 11, 2002, the first sentence of Section 6.1 of
the Trust Agreement is hereby amended to read as follows:
6.1 Authorization of Shares. The Trust is authorized to issue
100,000,000 Shares.
3. Except as otherwise amended herein, the Trust Agreement remains
unchanged and in full force and effect.
4. This Amendment No. 3 shall be interpreted in accordance with the laws
of the State of Delaware (without regard to conflict of laws principles), all
rights and remedies being governed by such laws.
5. Wilmington Trust Company, in its capacity as Registered Trustee of
the Trust, is hereby instructed to execute and deliver this Amendment No. 3
pursuant to Section 3.2(a)(iii) of the Trust Agreement.
6. This Amendment No. 3 may be executed in counterparts, each of which
shall be an original and all of which shall constitute one and the same
instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have caused this Amendment
No. 3 to be executed as of the day and year first above written.
MANAGING TRUSTEES:
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REGISTERED TRUSTEE:
WILMINGTON TRUST COMPANY,
(executing solely pursuant to
Section 3.2(a)(iii) of the Trust
Agreement and not in its individual
capacity but solely as Registered
Trustee)
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Financial
Services Officer
CONSENT OF MANAGER
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The Manager of the Trust hereby consents to the obligations imposed upon
it under Section 8 of the Certificate of Designation.
For the benefit of Wilmington Trust Company, as Registered Trustee of
the Trust, the Manager of the Trust hereby (i) confirms that this Amendment No.
3 has been duly adopted in accordance with the provisions of the Trust
Agreement, and (ii) instructs Wilmington Trust Company, in its capacity as
Registered Trustee of the Trust, to execute and deliver this Amendment No. 3
pursuant to Section 3.2(a)(iii) of the Trust Agreement.
Related Charter L.P.
By: Related Charter LLC
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice
President
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Appendix B
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CERTIFICATE OF DESIGNATION
of
SERIES A CONVERTIBLE COMMUNITY REINVESTMENT ACT PREFERRED SHARES
of
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY
Pursuant to the Amended and Restated Trust Agreement of Charter
Municipal Mortgage Acceptance Company dated September 30, 1997, as amended
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY, a Delaware
business trust created and existing under the Delaware Business Trust Act (the
"Trust"),
DOES HEREBY CERTIFY:
That pursuant to the authority expressly vested in the board of
trustees of the Trust ("Board of Trustees") by the Amended and Restated Trust
Agreement of the Trust, dated September 30, 1997, as amended (the "Trust
Agreement"), the Board of Trustees duly adopted on June 13, 2002 resolutions
providing for the amendment of the Trust Agreement creating a class of Preferred
Shares, no par value, of the Trust, with (i) the designations, powers,
preferences, (ii) the relative, participating, optional or other special rights,
and (iii) the qualifications, limitations or restrictions, set forth below (in
addition to those set forth in the Trust Agreement):
1. DESIGNATION AND AMOUNT. The Shares of such class of Preferred
Shares shall be designated "Series A Convertible Community Reinvestment Act
Preferred Shares" (the "Series A Convertible CRA Shares") and, subject to the
Trust Agreement, the number of Shares constituting such class shall be as
determined from time to time by the Board of Trustees. The Trust may, from time
to time, issue additional Series A Convertible CRA Shares and has issued, and
may from time to time issue, other securities which are on parity with the
Series A Convertible CRA Shares with respect to allocations of CRA Credits (as
defined below) which includes, but is not limited to, additional already issued
and currently outstanding Convertible Community Reinvestment Act Preferred
Shares of the Trust (collectively, "Parity Securities").
2. DISTRIBUTIONS AND EARNINGS.
a. Distributions. Except as set forth in Section 2.b., the
Trust shall pay distributions on each Series A Convertible CRA Share which are
the same as the distributions paid on each of the Trust's Common Shares. The
distributions shall be declared and paid whenever distributions on the Common
Shares are declared and paid. The record date for payment of distributions on
the Series A Convertible CRA Shares shall be the same date as for the Common
Shares.
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b. Initial Distribution. Notwithstanding the terms of Section
2.a., the initial distribution payable on the Series A Convertible CRA Shares
shall be equal to the quarterly distribution then payable on the Common Shares,
prorated for the period from the date of issuance of the Series A Convertible
CRA Shares through the record date for such distribution.
c. Non-Cash Distributions. In the event the Trust (i) pays to
all holders of Common Shares distributions payable in Common Shares or
securities convertible into Common Shares, (ii) issues to all holders of Common
Shares of certain rights, options or warrants entitling them to subscribe for or
purchase Common Shares at a price per share less than the fair market value per
Common Share, or (iii) distributes to all holders of Common Shares evidences of
indebtedness or assets of the Trust, the Series A Convertible CRA Shareholders
shall receive for each Series A Convertible CRA Share held the same payment,
issuance or distribution payable with respect to each Common Share. For example,
in the case of clause (i), if holders of Common Shares are entitled to receive
two Common Shares for each Common Share they hold, Series A Convertible CRA
Shareholders will receive two Common Shares for each Series A Convertible CRA
Share they hold. In connection with the foregoing payments, issuances or
distributions, the Board of Trustees, in its sole discretion, shall take
whatever actions it considers to be advisable in order that holders of Common
Shares and Series A Convertible CRA Shares are treated the same for federal
income tax purposes.
d. Earnings. For federal income tax purposes, the Board of
Trustees shall allocate to each Series A Convertible CRA Share the same earnings
as it allocates to each of the Common Shares, subject to the same proration for
distributions set forth in Section 2.b.
3. LIQUIDATION, DISSOLUTION OR WINDING UP. The Series A
Convertible CRA Shares shall rank (i) on a parity (pro rata based on the number
of Series A Convertible CRA Shares, Common Shares, and other equity securities
outstanding which rank in parity with respect to rights upon liquidation,
dissolution or winding up of the Trust) with the Common Shares and all other
equity securities issued by the Trust other than the equity securities referred
to in clause (ii); and (ii) junior to all equity securities issued by the Trust
whose terms specifically provide, other than with respect to allocations of CRA
Credits, that they rank senior to the Series A Convertible CRA Shares. With
respect to CRA Credit allocations, the Series A Convertible CRA Shares will rank
senior to the Common Shares and on parity with the Convertible CRA Shares and
other Parity Securities. The Trust may issue additional Parity Securities.
4. VOTING RIGHTS.
a. General. Except as otherwise specifically provided herein,
the holders of Series A Convertible CRA Shares ("Series A Convertible CRA
Shareholders") shall not be entitled to vote.
b. Required Consent. The Trust shall not, without the
affirmative vote or consent of the holders of a majority of the outstanding
Series A Convertible CRA Shares, amend, alter or repeal the terms of the Series
A Convertible CRA Shares or any provisions of the
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Trust's Trust Agreement that would adversely affect the powers, preferences,
privileges or rights of the Series A Convertible CRA Shares.
5. RIGHTS WITH RESPECT TO CRA CREDIT ALLOCATIONS.
a. General. Only Series A Convertible CRA Shares and other
Parity Securities shall be entitled to an allocation of CRA Credits. "CRA
Credits" are an allocation of the value of any assets owned directly or
indirectly by the Trust ("Investments") which a Series A Convertible CRA
Shareholder or holder of a Parity Security may be able to report under the
"investment test" promulgated under the Community Reinvestment Act of 1977, as
amended from time to time (the "CRA"). Subject to the terms of this Section 5,
each Series A Convertible CRA Share shall be entitled to an allocation of CRA
Credits equal to the initial purchase price paid to the Trust for such Series A
Convertible CRA Share. CRA allocations shall be undertaken upon each issuance of
Series A Convertible CRA Shares or other Parity Securities and reallocations, if
any, shall be undertaken at the end of each quarter. For CRA Credit allocation
purposes, Investments shall be valued at their carrying value as of the Trust's
most recent calendar quarter.
b. Initial Allocations. Each Series A Convertible CRA
Shareholder shall provide to the Trust a certification of its Self-Defined
Assessment Area. "Self-Defined Assessment Area" is the Series A Convertible CRA
Shareholder's geographic self-defined assessment area or broader statewide or
regional area that includes a Series A Convertible CRA Shareholder's
self-defined assessment area for purposes of the CRA. Upon subscription for
Series A Convertible CRA Shares, the Manager, on behalf of the Trust, shall
notify the Series A Convertible CRA Shareholders of the CRA Credits allocated to
such Shareholders' Series A Convertible CRA Shares based upon such Shareholder's
Self-Defined Assessment Area. To the extent that upon the initial issuance of
Series A Convertible CRA Shares by the Trust to a Series A Convertible CRA
Shareholder, such Series A Convertible CRA Shareholder is not allocated the
amount of Investments it has requested and is entitled to receive based on the
initial purchase price paid for its Series A Convertible CRA Shares (an
"Unallocated Shareholder"), the Trust shall use its commercially reasonable
efforts to acquire Investments after such issuance that satisfy such Unallocated
Shareholders' Self-Defined Assessment Area. An investor of Series A Convertible
CRA Shares which is allocated the amount of Investments which it has requested
and is entitled to receive based on the initial purchase price paid for its
Series A Convertible CRA Shares is referred to as a "Fully Allocated
Shareholder".
c. Replacement Allocations. CRA Credits shall not be
reallocated except as follows:
i. Prepayment, Repayment or Sale of Allocated Assets. If an
Investment comprising a CRA Credit allocated to a Series A Convertible CRA
Shareholder is either repaid, prepaid, sold or foreclosed (a "Terminated
Allocation") within the first 24 months after such Investment is first allocated
to a Series A Convertible CRA Shareholder ("Initial 24 Month Period"), then the
Trust shall either reallocate a comparable unallocated Investment to the Series
A Convertible CRA Shareholder or use its commercially reasonable efforts to
replace the Terminated Allocation with a comparable Investment and have it
reallocated to the Series A Convertible CRA Shareholder. However, if a
Terminated Allocation occurs after the Initial 24
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Month Period, the Trust shall have no obligation to replace the Terminated
Allocation with a new Investment although such Series A Convertible CRA
Shareholder may choose to receive a reallocation from among any then existing
but unallocated Investments, subject to the allocation priorities set forth in
Section 5.d.
ii. Reclassification Upon Transfer. If a Fully Allocated
Shareholder transfers its Series A Convertible CRA Shares, the transferee shall
receive the same allocation of CRA Credits as the Fully Allocated Shareholder
had prior to transfer. If an Unallocated Shareholder transfers its Series A
Convertible CRA Shares, the transferee shall receive (i) the same allocation of
CRA Credits as the Unallocated Shareholder had prior to transfer, and (ii) the
same priority that the Unallocated Shareholder had prior to transfer with
respect to allocations of CRA Credits which the Unallocated Shareholder has
properly requested from the Trust but had not received prior to transfer.
Subject to the allocation priorities set forth in Section 5.d., a transferee
shall have a one-time option to obtain a different allocation of CRA Credits
based on any then existing but unallocated Investments.
iii. Permissive Reallocations; Sources of Unallocated CRA
Credits. The Trust, in its sole discretion, may allow a Series A Convertible CRA
Shareholder to reallocate its CRA Credits to unallocated CRA Credits of the
Trust available from the sources set forth below, subject to the allocation
priorities set forth in Section 5.d. The sources of unallocated CRA Credits
shall be as follows:
A. Current Investments. Investments currently held by
the Trust which are unallocated to any Series A Convertible CRA Shareholder or
holders of any Parity Securities.
B. New Investments. New Investments acquired from time
to time which are unallocated to any Series A Convertible CRA Shareholder or
holders of any Parity Securities.
C. Conversions to Common Shares. CRA Credits allocated
to Series A Convertible CRA Shares or Parity Securities that are converted to
Common Shares.
iv. Mechanics for Reallocation. The Manager shall adopt
such procedures as it deems necessary to implement the reallocation and/or
replacement allocation rights set forth in this Section 5.
d. Allocation Priorities. Unallocated CRA Credits shall be
allocated in accordance with the following priorities:
(i) first, to Unallocated Shareholders;
(ii) second, to Series A Convertible CRA Shareholders and
holders of Parity Securities with Terminated Allocations within the Initial 24
Month Period;
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(iii) third, to the transferee of Series A Convertible CRA
Shares or Parity Securities;
(iv) fourth, to Series A Convertible CRA Shareholders and
holders of Parity Securities with Terminated Allocations subsequent to the
Initial 24 Month Period; and
(v) fifth, at the sole discretion of the Trust, the balance
to Series A Convertible CRA Shareholders and holders of Parity Securities who
request reallocations of CRA Credits.
Within each category set forth above, the Trust shall determine
the order in which Series A Convertible CRA Shareholders and holders of Parity
Securities are entitled to receive allocations of CRA Credits as follows:
A. for clause (i) above, priority shall be based on
the order in which Series A Convertible CRA Shareholders or holders of Parity
Securities became Unallocated Shareholders;
B. for clauses (ii) and (iv) above, priority shall be
based on the order in which a Series A Convertible CRA Shareholder or a holder
of a Parity Security suffers a Terminated Allocation;
C. for clause (iii) above, priority shall be based on
the order in which Series A Convertible CRA Shares or Parity Securities were
transferred; and
D. for clause (v) above, priority shall be based on
the order in which the request for reallocation is actually received by the
Trust.
e. Allocations with respect to Subsequent Parity Security
Offerings. Shareholders who acquire Parity Securities in a subsequent offering
by the Trust shall have the same rights to initial allocation and subsequent
reallocation of unallocated CRA Credits as the Series A Convertible CRA
Shareholders and other holders of Parity Securities who purchased shares in
prior offerings, subject to the allocation priorities set forth in Section 5.d.
6. CONVERSION.
a. Optional Right to Convert; Conversion Formula. Series A
Convertible CRA Shares may be converted into Common Shares at the end of any
calendar quarter (or more frequently at the Trust's discretion upon not less
than fourteen (14) days written notice) at the Series A Convertible CRA
Shareholder's option on a one-to-one ratio as adjusted pursuant to the terms of
Section 6.c.
b. Mechanics of Conversion; Fractional Shares.
i. Each Series A Convertible CRA Shareholder who desires to
convert its Series A Convertible CRA Shares into Common Shares shall provide
notice to the Trust in the form of the Notice of Conversion attached to this
Certificate of Designation (a
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"Conversion Notice") via telecopy, hand delivery or other mail or messenger
service. The original Conversion Notice and the certificate or certificates
representing the Series A Convertible CRA Shares for which conversion is
elected, shall be delivered to the Trust by nationally recognized courier, duly
endorsed. The date upon which a Conversion Notice is initially received by the
Trust shall be a "Notice Date."
The Trust shall use all reasonable efforts to issue and deliver
within three (3) business days after the Notice Date, to such Series A
Convertible CRA Shareholder at the address of the holder on the books of the
Trust, a certificate or certificates for the number of Common Shares to which
the holder shall be entitled as set forth herein; provided that the original
certificates representing the Series A Convertible CRA Shares to be converted
are received by the transfer agent or the Trust within three business days after
the Notice Date and the Person or Persons entitled to receive the Common Shares
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such Common Shares on such date such original certificates
are received. If the original certificates representing the Series A Convertible
CRA Shareholder to be converted are not received by the transfer agent or the
Trust within three business days after the Notice Date, the Conversion Notice
shall become null and void.
ii. If the Conversion Ratio results in a Series A
Convertible CRA Shareholder being entitled to receive a fractional Common Share
with respect to the aggregate Series A Convertible CRA Shares being converted
pursuant to a Conversion Notice, in lieu of the issuance of such fractional
Common Share, Trust shall pay to the Series A CRA Shareholder cash in an amount
equal to the price of a Common Share on the date of the Conversion Notice
multiplied by the fraction representing the fractional share.
c. Adjustment to Conversion Ratio.
i. If, prior to the conversion of all Series A Convertible
CRA Shares, the number of issued and outstanding Common Shares is increased by a
share split or other similar event, the conversion ratio shall be
proportionately increased, or if the number of issued and outstanding Common
Shares is decreased by a combination or reclassification of Common Shares or
other similar event, the conversion ratio shall be proportionately decreased.
ii. If, prior to the conversion of all Series A Convertible
CRA Shares, the Trust shall be a party to any transaction (including, without
limitation, a merger, consolidation, tender offer of all or substantially all of
the shares or sale of all or substantially all of the Trust's assets), as a
result of which Common Shares shall be converted into the right to receive
securities or other property (including cash or any combination thereof), each
Series A Convertible CRA Share, if convertible after the consummation of the
transaction, shall thereafter be convertible into the kind and amount of shares
and other securities and property (including cash or any combination thereof)
receivable upon the consummation of such transaction by a holder of that number
of Common Shares or fraction thereof into which one Series A Convertible CRA
Share was convertible immediately prior to such transaction, assuming such
Series A Convertible CRA Shareholder failed to exercise any rights of election
to convert (provided that if the kind and amount of stock or beneficial
interest, securities and other property so receivable is not the same for each
non-electing share, the kind and amount so receivable by
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each non-electing share shall be deemed to be the kind and amount received per
share by a plurality of non-election shares). The Trust may not become a party
to any such transaction unless the terms thereof are consistent with the
foregoing.
d. Effect of Conversion on Allocation of CRA Credits. Upon
conversion, Series A Convertible CRA Shareholders shall no longer be entitled to
retain the allocation of CRA Credits allocated to the Series A Convertible CRA
Shares that were converted to Common Shares. Such CRA Credits shall be allocated
to other Series A Convertible CRA Shareholders and holders of Parity Securities
pursuant to Section 5.
e. Conversion into Common Shares. Upon conversion of the
Series A Convertible CRA Shares in accordance with this Certificate of
Designation and the issuance of a certificate or certificates for the number of
Common Shares to which the Series A Convertible CRA Shareholder shall be
entitled as set forth herein, such Series A Convertible CRA Shares shall be
deemed automatically canceled and shall cease to be issued or outstanding. The
conversion of Series A Convertible CRA Shares into Common Shares is hereby
authorized and the Common Shares issued upon conversion shall be fully paid and
nonassessable undivided beneficial interests in the assets of the Trust. The
number of issued and outstanding Shares (as defined in the Trust Agreement)
shall not be deemed to have increased solely as a result of a conversion of
Series A Convertible CRA Shares in accordance with this Certificate of
Designation. For avoidance of doubt and by way of illustration, if there are 100
issued and outstanding Shares, 50 of which are Series A Convertible CRA Shares
and 50 of which are Common Shares, then upon a conversion of one Series A
Convertible CRA Share to a Common Share in accordance with this Certificate of
Designation, there would still be only 100 issued and outstanding Shares, 49 of
which are Series A Convertible CRA Shares and 51 of which are Common Shares.
7. CRA REPORTING. The Trust shall provide to each Series A
Convertible CRA Shareholder the following reports:
i. an initial report within thirty days of the issuance of
Series A Convertible CRA Shares which shall set forth specific information
regarding the Investment comprising the CRA Credits allocated to each Series A
Convertible CRA Shareholder which shall include the name and address of the
property underlying such Investment (the "Underlying Property"), the carrying
value of such Investment and data concerning the community served by the
Underlying Property, including tenant income limitations, and a brief
description of the Underlying Property's development status (i.e., under
construction, leasing, or stabilized occupancy); and
ii. quarterly reports within forty-five days after the end
of each calendar quarter which shall set forth specific information regarding
the Investment comprising the CRA Credits allocated to each Series A Convertible
CRA Shareholder, such as the name and address of the Underlying Property, the
carrying value of the Investment allocated to such Series A Convertible CRA
Shareholder and updated information on the Underlying Property's construction
and physical occupancy status.
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8. CRA AUDITING ASSISTANCE. The Manager, on behalf of the Trust,
shall provide technical support and documentation to assist Series A Convertible
CRA Shareholders in preparing for CRA audits and shall attend audit meetings if
requested. In the event that such support and documentation is requested, the
Series A Convertible CRA Shareholder making the request shall be required to pay
all of the Trust's out-of-pocket expenses associated with such assistance. The
Manager shall adopt such procedures and rules as it deems necessary in providing
the assistance contemplated in this Section 8.
9. TRANSFER RESTRICTIONS.
a. Legend.
i. Public Offering of Series A Convertible CRA Shares
The Series A Convertible CRA Shares offered in a public offering
shall be subject to restrictions on transfer as set forth in this Certificate of
Designation and each Series A Convertible CRA Share certificate will contain a
legend which substantially to the following effect:
THE SERIES A CONVERTIBLE COMMUNITY REINVESTMENT ACT PREFERRED SHARES
REPRESENTED HEREBY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN WHOLE
SHARES. OTHER TRANSFER RESTRICTIONS, INCLUDING MINIMUM TRANSFER AMOUNTS,
ARE SET FORTH IN THE CERTIFICATE OF DESIGNATION.
ii. Private Offering Pursuant to 144A
The Series A Convertible CRA Shares offered in a private offering
pursuant to 144A of the Securities Act of 1933, as amended, shall be subject to
restrictions on transfer as set forth in this Certificate of Designation, and
each Series A Convertible CRA Share certificate will contain a legend which
substantially to the following effect:
THE SERIES A CONVERTIBLE COMMUNITY REINVESTMENT ACT PREFERRED SHARES
(THE "SERIES A CONVERTIBLE CRA SHARES") REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES
LAWS AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). NEITHER SUCH
SERIES A CONVERTIBLE CRA SHARES NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM SUCH REGISTRATION. SERIES A CONVERTIBLE CRA
SHARES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN WHOLE SHARES.
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A SERIES A CONVERTIBLE CRA SHAREHOLDER MAY NOT TRANSFER LESS THAN
200,000 SERIES A CONVERTIBLE CRA SHARES, OR, IN THE EVENT THAT SUCH
SERIES A CONVERTIBLE CRA SHAREHOLDER WAS PERMITTED TO PURCHASE AND DID
PURCHASE LESS THAN 200,000 SERIES A CONVERTIBLE CRA SHARES, THE NUMBER
OF SERIES A CONVERTIBLE CRA SHARES SO PURCHASED. UNLESS A TRANSFEROR HAS
TRANSFERRED ALL OF ITS SERIES A CONVERTIBLE CRA SHARES, IT MUST RETAIN
NO LESS THAN 200,000 SERIES A CONVERTIBLE CRA SHARES OR THE AMOUNT OF
SERIES A CONVERTIBLE CRA SHARES INITIALLY ACQUIRED.
THE HOLDER BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER THE SERIES A CONVERTIBLE CRA SHARES REPRESENTED HEREBY, PRIOR
TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY "AFFILIATE" OF
THE ISSUER WAS THE OWNER OF SUCH SERIES A CONVERTIBLE CRA SHARES (OR ANY
PREDECESSOR HEREOF), ONLY IN A TRANSFER (A) TO THE ISSUER OR AN INITIAL
PURCHASER OR BY, THROUGH, OR IN A TRANSACTION APPROVED BY AN INITIAL
PURCHASER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THE SERIES A
CONVERTIBLE CRA SHARES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) THAT IS ACQUIRING SUCH SERIES A
CONVERTIBLE CRA SHARES FOR ITS OWN ACCOUNT OR AS FIDUCIARY OR AGENT FOR
OTHERS (EACH OF WHICH MUST BE SUCH AN INSTITUTIONAL ACCREDITED INVESTOR
UNLESS THE PURCHASER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND
EFFECT, WILL TO THE FULLEST EXTENT PERMITTED BY LAW BE VOID AB INITIO,
AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE,
NOTWITHSTANDING ANY INSTRUCTION TO THE CONTRARY TO THE ISSUER, THE
TRANSFER AGENT OR ANY INTERMEDIARY.
b. Minimum Transfer Amounts. A Series A Convertible CRA
Shareholder may not transfer, at any time, less than (i) 200,000 Series A
Convertible CRA
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Shares, or, (ii) in the event that at the Manager's discretion a Series A
Convertible CRA Shareholder was permitted to purchase and did purchase less than
200,000 Series A Convertible CRA Shares, the number of Series A Convertible CRA
Shares so purchased. In all events, however, if a transferor has not transferred
all of its Series A Convertible CRA Shares, it must retain no less than 200,000
Series A Convertible CRA Shares or the amount of Series A Convertible CRA Shares
initially acquired.
10. CAPITALIZED TERMS. Capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
11. SECTION REFERENCES. Unless otherwise stated herein,
references to sections shall be deemed to be references to sections of this
Certificate of Designation.
12. GOVERNING LAW. This Certificate of Designation shall be
interpreted in accordance with the terms of the State of Delaware (without
regard to conflict of laws principles), all rights and remedies being governed
by such laws.
13. CERTIFICATES. Certificates representing Series A Convertible
CRA Shares shall include a statement that requires the Trust to furnish to any
Series A Convertible CRA Shareholder, upon written request and without charge, a
full statement of (i) any restrictions, limitations, preferences or redemption
provisions concerning the Series A Convertible CRA Shares and (ii) the
designations and any preferences, conversion and other rights, voting powers,
restrictions, limitations as to distributions, and other qualifications and
terms and conditions of redemption of such Series A Convertible CRA Shares and
the authority of the Board of Trustees to set the relative rights and
preferences of subsequent series of Series A Convertible CRA Shares.
Notwithstanding any other provision of the Trust Agreement or the Amended and
Restated Bylaws of the Trust (the "Trust Bylaws") to the contrary, a certificate
representing Series A Convertible CRA Shares shall be validly issued upon the
manual signature of any one or more Managing Trustee. Such a certificate need
not be countersigned and registered by the Trust's transfer agent and/or
registrar. The Managing Trustees, acting individually or collectively, shall
execute and deliver certificates representing the Series A Convertible CRA
Shares substantially in the form attached hereto as Exhibit A and incorporated
herein by reference, together with such modifications thereto as such Managing
Trustee or Managing Trustees shall approve (notwithstanding any other provision
of the Trust Agreement or Amended and Restated Bylaws of the Trust but subject
to the requirements set forth in this Certificate of Designation), such approval
to be conclusively, but not exclusively, evidenced by the execution and delivery
thereof by such Managing Trustee or Managing Trustees. To the extent that this
Section 13 is inconsistent with the Trust Bylaws, in accordance with Article XIV
of the Trust Bylaws, the Trust Bylaws, including Article VII of the Trust
Bylaws, shall be deemed amended for the limited purposes set forth in this
Section 13.
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ANNEX TO
CERTIFICATE OF DESIGNATION
--------------------------
NOTICE OF CONVERSION
--------------------
To: Charter Municipal Mortgage Acceptance Company
Reference is made to that certain Certificate of Designation of Series A
Convertible Community Reinvestment Act Preferred Shares Series A Convertible CRA
Shares of Charter Municipal Mortgage Acceptance Company (the "CRA Designation").
Capitalized terms used but not defined herein shall have the meanings set forth
in the CRA Designation. Pursuant to the CRA Designation, the undersigned, being
a holder of Series A Convertible CRA Shares (an "Exercising Holder"), hereby
elects to exercise its conversion rights as to a portion or portions of its
Series A Convertible CRA Shares, all as specified opposite its signature below:
Dated:
NUMBER OF SERIES A
EXERCISING HOLDER CONVERTIBLE CRA
----------------- SHARES TO BE
CONVERTED TO
COMMON SHARES
Name Signature -------------
-----------------
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